In the following blog, I’m going to combine two experiences of the same event written contemporaneously and originally as separate pieces. The event is a hearing in the Court of Protection and both experiences are mine.
In Part 1 I describe abortive attempts to obtain a hearing link.
In Part 2, I focus on a public rebuke from the judge and the impact this had on me.
As in all events, there are multiple lenses these experiences can be viewed through and unseen reasons behind actions. I have no doubt there were human factors at play in both scenarios.
Neither experience supported transparency or open justice in the Court of Protection.
Part 1 Open Justice Denied: A Frustrating Attempt to Attend the Court of Protection
This morning, I had what I can only describe as a non-experience with the Court of Protection. It was to have been my eighth opportunity[i]to observe a hearing through the Open Justice Court of Protection Project — a valuable part of my professional development as a Lasting Power of Attorney (LPA) consultant and Advance Care Planning Educator. But despite my best efforts, I never made it into the virtual courtroom.
Observing Court of Protection hearings helps me to understand where Lasting Power of Attorney arrangements can go wrong, where they are challenged, and how I can best advise my clients to avoid distressing disputes later on.
Each hearing I’ve attended has offered rich learning: insight into legal reasoning, the lived experience of ‘P’ (the person at the centre of the case), and the ways families and professionals can work either in harmony—or, sadly, in conflict. Which is why today was so disappointing.
I was alerted by a direct message that there was to be a hearing involving an application to revoke Lasting Powers of Attorney. This felt pertinent to my roleand I was keen to learn more. I rearranged my diary commitments and plans, freeing the potential three hours to be present, and requested the hearing link.
This is the email I sent at 09.07am that morning.
I also started work to blog about the hearing using the Open Justice Court of Protection Project Hearing Feedback template. From previous experience, I know how valuable it is to join a hearing up and ready to go.
In the lead-up to the hearing, I also joined the WhatsApp group for observers. WhatsApp Group support is an initiative that I have not accessed the previous times I attended a hearing and I found it tremendously valuable. I understand the concept of using WhatsApp groups developed recently as a way of providing support for the people observing Court of Protection hearings. Reading the WhatsApp messages made me aware that one observer had been sent the link but two others hadn’t.
As the listed start-time of 10.30am approached, time I became worried that I still did not have a link. I checked in with the WhatsApp group to make sure I had sent my request to the correct email (I had) and I re sent my request.
I sent a further request, this time marked as urgent.
Timeline of a morning that went nowhere
Time
Comment
08:33
I received an X direct message alerting me to a hearing. I replied immediately to confirm I was available.
09:07
I sent my official request to observe the hearing via email, using the Open Justice Court of Protection template.
09:53
I sent a second request via email, this time also asking for A Transparency order.
10:15
Still no email link. I waited, hopeful.
10:24
I re-sent my observation request.
10:37
I marked a third request as urgent.
Meanwhile
Within the WhatsApp group, it became clear that only one of the four of us had successfully received a link.
10:46
No link received. I gave up hope of attending the hearing.
I had been actively trying to observe this hearing for over 90 minutes. I didn’t want to log in late, potentially disrupt the process, or feel like an intruder. But I was deeply disappointed. I’d set aside time, prepared myself mentally and professionally, and was eager to witness justice in action.
Instead, I was left in limbo.
The whole aim of the Open Justice Court of Protection Project is to make the court’s vital work visible; to shed light on the complex, sensitive decisions being made about some of the most vulnerable members of our society.
But openness isn’t just about permissions—it’s about access.
Today, I was willing, prepared, and enthusiastic—but still not admitted. It doesn’t feel like open justice when observers are left behind because of administrative delays or communication breakdowns.
I understand the complexities. I appreciate the pressures. But I hope the system can be improved, because attending hearings really does help professionals like me to support families better, to understand the law more deeply, and to advocate more effectively for those whose voices are often least heard.
This morning, justice was happening somewhere—I just wasn’t allowed to see it.
I thought my story and blog would end here. But there is a sequel.
Part 2 A Troubling Experience with the Court of Protection
I originally wrote the piece that now forms Part 1 of this blog when I believed I had lost the opportunity to attend a hearing. You’ll see from the timeline of emails that I first requested access approximately two hours before the hearing was due to start—a detail that’s important in understanding what followed.
What happened next was not just frustrating—it was uncomfortable and unsettling, and left me with a poor impression of the Court of Protection. Here’s what happened, and how it made me feel.
At 11:03, I was informed by the WhatsApp Observer support that the court clerk was aware of my request and that a link would be sent. Although I knew proceedings had already started, I felt it would be discourteous not to join after time had been spent arranging the link. Other observers from the Open Justice Court of Protection Project had already been admitted by this time. I don’t know what time they made their requests, but it would be interesting to reflect on what difference, if any, that may have made.
This is the email I received at 11:06:
When the email arrived, I read the attached Transparency Order immediately, so I could confirm I had done so if asked. I joined the hearing at 11:07, with my camera off and sound muted, as I knew was appropriate. I was prepared to confirm that I had read the order.
What I was not prepared for was what happened next.
The hearing began as expected, with Judge Hilder asking me to switch on my camera and microphone. I complied, confirming I was alone and had read the Transparency Order.
Then, things shifted quickly. Within moments, Judge Hilder addressed me sharply, describing late access requests as disruptive and advising me to “consider that, in the future.” This was done in front of all present in the court. I was stunned, embarrassed, and humiliated. It felt like I was being publicly told off for something outside of my control.
I had requested to join at 09:07, more than 90 minutes before the hearing began. Yet I didn’t say this. I didn’t explain that previous hearings had started late, which had shaped my expectations. I can’t even remember whether I said sorry—I simply acquiesced.
In the space where I had planned to take notes on the hearing, I instead wrote: “I feel discombobulated, anxious and humiliated. Joining late also means I have missed the introduction and any summary – I feel on the back foot, anxious and without full understanding through no fault of my own.”
Reflections
I am grateful that I have had six positive experiences as an observer in the Court of Protection and acknowledge that if this had been my first experience it may well have been my last.
I still don’t understand:
Why I wasn’t sent a link in a timely manner
Why, once I did join, I was made to feel so unwelcome and uncomfortable
The impact on me was deeply unpleasant. I had to accept a public rebuke for something I felt was not my fault. Even more concerning, I missed crucial early parts of the hearing and struggled to focus due to the emotional impact of the experience. My fight-or-flight response kicked in, crowding out the calm, attentive state needed for observation and reflection.
I want to be clear: this is not the norm in my experience of the Court of Protection. I share this not to put others off from attending, but in the hope that it might help prevent a similar situation in the future.
Conclusion: Key Learning Points
Timely access is critical: Requests to observe hearings should be acknowledged and acted upon promptly to ensure meaningful participation.
Respectful communication matters: Public rebukes, especially for issues beyond an observer’s control, can have lasting emotional impact and undermine trust in the process.
First impressions are powerful: For those new to observing, an unwelcoming experience could discourage future engagement with the justice system.
Transparency requires support: Open justice must be paired with effective administrative processes and respect to be truly effective.
Clare Fuller RGN MSc is a Registered Nurse with 30 years’ experience in End-of-Life Care (EoLC). She has worked in hospices, the community, and acute sectors as a Clinical Nurse Specialist, and at a national level as a Consultant Nurse for the Gold Standards Framework. Clare is a CQC Specialist Advisor for EoLC and a Lasting Power of Attorney Consultant. Clare is also currently advising as a Commissioner for the Parliamentary Commission on Palliative and End of Life Care.Clare is the owner and director of Speak for Me which helps organisations to improve EoLC and provides professional and public education about Palliative and End of Life Care and Advance Care Planning. Clare campaigns for proactive Advance Care Planning and hosts the podcast Conversations about Advance Care Planning
Following an adjourned committal hearing back in December 2024, we were concerned that the defendant (referred to only by his initials, “MW”), who is facing a prison sentence for contempt of court, had been anonymised in the public court lists – and the observer considered it likely that there would be a prohibition (for reasons she didn’t know) on publishing his name.
As it turned out, the December hearing was adjourned because MW didn’t have legal representation. The next hearing was arranged for a couple of months later, and I was able to observe. This is an update on what’s happened since. The good news is that transparency has prevailed and we can name him as Melvin Wright.
In this blog I will address:
Open justice in a committal hearing – how the judge managed the transparency issues prior to the hearing with forethought and how she managed the hearing itself
What happened at the hearing. Part 1: Our application to vary the Transparency Order and to allow the naming of the defendant and Part 2: the committal hearing – the substance of the hearing
Reflections
Open Justice in a Committal Hearing
The Practice Direction Committal for Contempt of Court – Open Court says that open justice is “a fundamental principle” and that “the general rule is that hearings are carried out in, and judgments and orders are made in, public” (§3). The alleged contemnor should normally be named and committal applications listed as specified in §5(2):
FOR HEARING IN OPEN COURT
Application by [full names of applicant]
for the committal to prison of
[full names of the person alleged to be in contempt]
Any derogations from the principle of open justice “can only be justified in exceptional circumstances, when they are strictly necessary as measures to secure the proper administration of justice…” (§4).
On 29th January 2025 we (in the OJCOP project) were alerted, by a Court of Protection administrative officer, to a court order for the committal hearing on 3rd February 2025. This was the email:
“Dear Mr P [PA journalist]/Ms Kitzinger,
Please find attached a copy of the order made by HHJ Hilder on 29 January 2025, which provides at paragraph 9 service to the Press Association and The Open Justice Project.
Yours Faithfully,
[name removed]”
HHJ Hilder had issued a court order stating:
“Service
9. The court staff shall issue this order to all parties and also provide a copy to the Press Association and to The Open Justice Project.”
This meant that we knew in advance of HHJ Hilder’s decision not to publish the defendant’s name in the court listing (i.e. prior to the hearing) and we were able to decide whether to request to make representations regarding this departure from the usual practice of naming contemnors in court listings.
The order said:
Reporting restrictions
4. Pursuant to Rule 21.8(5) the names of the Defendant (MW), the First Respondent (initials removed) and the Second Respondent (initials removed) shall not appear in the public listing of the hearing, and the involvement of any of them in committal proceedings shall not be published by any other means. The Court will consider at the hearing whether this prohibition should be continued or terminated, and will hear submissions on that issue from the parties and/or media organisations.
Rule 21.8(5) says: “The court must order that the identity of any party or witness shall not be disclosed if, and only if, it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of that party or witness.”
Hooray! We could give some forethought, as HHJ Hilder had done, to whether we wished to apply to name the defendant in this case, as court rules and Esper stipulate is the default position in committal hearings.
It didn’t leave much time (we received the court order on the Wednesday and the committal hearing was the following Monday). Celia Kitzinger had observed the previous hearing but was away on holiday. The rest of us in the Project liaised and produced a Position Statement to apply for permission to identify the defendant. I was available to attend and so the application was in my name, supported by the Open Justice Court of Protection Project.
We public observers rarely see any journalists in the Court of Protection and when they have attended, they have typically not addressed the court. On this occasion a Press Association journalist did attend (in person) and it was reassuring to be able to contact him privately and garner his support for the Position Statement we submitted. I am very grateful for that. As it turned out, the Press Association has decided (so far) not to report on this case.
I have not written a Position Statement before. It was quite a nerve-wracking process. We (in the OJCOP project) have all applied to ‘vary’ (change) Transparency Orders before, for example when a public body is included in the reporting restrictions. There are very rarely times when publishing the name of a public body acting as applicant or respondant in legal proceedings should be banned, and we have almost always been successful in overturning the restriction. Preparing a Position Statement such as this was a different matter and required some knowledge of the law regarding disclosure of people’s names in the context of committal proceedings.
We also noticed, though, that the current Transparency Order for this case did also prevent naming of the public bodies, including banning publication of the names of the Local Authority, ICB, and NHS Trust. So we also included in our Position Statement an application to vary that restriction, to enable the naming of public bodies involved in the case.
HHJ Hilder had helpfully pointed to the relevant case law (the Esper judgment) in her court order. I had also, coincidentally, observed in person a committal hearing at the Royal Courts of Justice the week before, which had been an open justice disaster – see “Draconian reporting restrictions in a contempt of court case”). So I knew about the Esper judgment and that I would need to read it with a ‘fine toothcomb’ (HHJ Hilder’s words in the previous hearing for this case).
Here’s the substance of our Position Statement below:
This is an application to vary the Court Order for the second committal application (“the Order”) [in this case]made by Her Honour Judge Hilder, at First Avenue House, 42-49 High Holborn, London WC1V 6NP, on 29th January 2025, issued on 29th January 2025, in order to permit identification of the defendant ‘MW’, or otherwise for the court to give a reasoned explanation for non-disclosure of the contemnor’s identity.
The Order sets out at §11: “Reconsideration. 11. This order was made without a hearing. Any person affected by it may apply to the Court, by filing a COP9 application within 21 days of the order being served, for its reconsideration pursuant to Rule 13.4 of the Court of Protection Rules 2017.” Mr [S – court administration staff] emailed Celia Kitzinger with the Order and redirected it to the OJCOP project on 29th January 2025. We have only just had time to prepare this statement and respectfully request that the court considers the application.
On 29th January 2025 HHJ Hilder ordered the following at §4: “Reporting restrictions: Pursuant to Rule 21.8(5) the names of the Defendant (MW), the First Respondent (initials removed) and the Second Respondent (initials removed) shall not appear in the public listing of the hearing, and the involvement of any of them in committal proceedings shall not be published by any other means. The Court will consider at the hearing whether this prohibition should be continued or terminated, and will hear submissions on that issue from the parties and/or media organisations.”
The Practice Direction Committal for Contempt of Court – Open Court[1] says that open justice is “a fundamental principle” and that “the general rule is that hearings are carried out in, and judgments and orders are made in, public” (§3). The alleged contemnor should normally be named and committal applications listed….”
The Esper Judgment[2] at §54 (i) states: “Open justice is a fundamental principle and the general rule is that hearings should be carried out and judgments and orders made in public. Derogations from the general principle can only be justified in exceptional circumstances when strictly necessary as measures to secure the proper administration of justice.” And at §36: “It is expected that these conditions will both be met rarely for a defendant and extremely rarely for a defendant found to have committed contempt.” [my emphases]
Court of Protection Rules: According to Esper §15, Rule 21.8(5) of the Court of Protection Rules (COPR) prevails over any practice directions where they are “incompatible”. Rule 21.8(5) requires non-disclosure of a defendant in a committal hearing when two conditions are met (and both must be met): (i) To protect the interests of the party or witness (i.e. the defendant); (ii) to ensure the proper administration of justice.
Taking Point b (above) first: “To ensure the proper administration of justice”. This is covered by §37 and §39 in Esper. A number of circumstances are set out in §39 when this condition would be met. Point §39 (v) states that one would be when: “In some other way the proper administration of justice would be undermined”. This criterion at §39(v) is exceptionally vague (‘some other way’) and difficult to pre-empt when challenging reporting restrictions. We are not in possession of all of the facts about this case and are therefore not aware of reasons that would weigh the balance (of disclosure vs non-disclosure) in favour of non-disclosure. We appreciate that the reasons might be magnetic. We would submit that, should the decision for non-disclosure stand, in order to prevent the undermining of the ‘proper administration of justice’, as a minimum, the judge should record in the written public judgment (which we understand is required for all committal hearing judgments) her reasons for ordering the non-disclosure of a contemnor’s name.
Focusing on Point a (above): To protect the interests of the party or witness (i.e. the defendant), Esper states:
9. It is difficult to make an argument for disclosure of a contemnor’s name without knowledge of why the contemnor (MW in this case) is said to meet criteria for non-disclosure. As far as we are aware, there is no public order or judgment explaining the reasoning for ordering non-disclosure. In Esper §54 (ix): regarding not naming the defendant in order to protect P: “COPR r21.8(5) is not triggered to prevent the disclosure of the identity of the defendant if the sole purpose is to protect the interests of P. It must be the interests of the defendant that need protecting.” [my emphasis]. We submit that, given that the Esper judgment stresses that this should occur only ‘extremely rarely’, and particularly if the defendant is found to have committed contempt, HHJ Hilder should justify with her reasons why the defendant’s identity should not be disclosed in order to ‘protect the interests of the party or witness’.
10. Why might identifying MW be risky? In the Open Justice Court of Protection blog[3] dated 3rd January 2025, Celia Kitzinger wrote: “The only other reason I can guess at as to why it would be “necessary to secure the proper administration of justice and in order to protect the interests of that party…”that MW’s identity should be protected (and presumably [the second respondent’s] too) is that publication of their identities risks public identification of the protected party, via jigsaw identification (that would be the “proper administration of justice” bit) and (it’s “and” not “or”) MW’s own ill-health, which is referred to in the order (“The Court is mindful that MW has health limitations”). And: “… in relation to the risk of identification of P, most of the defendants in contempt of court cases in the Court of Protection are family members or close friends of the protected party, which means it can always be argued that knowing who they are might risk the public becoming aware of P’s identity. In practice, both in the Court of Protection (e.g. Re Dahlia Griffith [2020] EWCOP 46) and in the Family Courts (e.g. Manchester City Council v Maryan Yuse, Farad Abdi & the children [2023] EWHC 1248 (Fam)) family members have been named in judgments and there is no evidence at all that members of the public (or journalists) have subsequently tracked down the protected parties or children concerned or harmed them in any way.”
11. The Open Justice Court of Protection blog dated 3rd January 2025 does not report any details of the nature of the family relationships, in order to minimise the likelihood of jigsaw identification in future, if disclosure of the identification of the contemnor is considered by the judge in future.
12. We have heard the argument from counsel (at another hearing) that disclosure of the contemnor’s name, even in the unlikely event that it led to jigsaw identification of P, was not likely to cause any ‘harm’, and that the balance is always in favour of open justice and continuity of judicial reporting (via judgments) to enable public scrutiny and accurate recording of judicial process. We do not know, in this particular case, whether ‘harm’ is likely to be caused to P or to the defendant, and would not wish that to happen, were this the case.
13. Our submission is that jigsaw identification is unlikely and might be mitigated by changing the initials of P in a judgment or preventing specific details of the case being reported, and unless there are very real risks of harm to [the young woman at the centre of the case], MW and [second respondent], should the defendant’s name be disclosed, the balance is in favour of Art 10 rights and disclosure of the defendant’s name. The OJCOP project might still decide, should disclosure be permitted, NOT to publish the name of the defendant, but the right to do so should be preserved.
14. Finally, it is not standard practice to anonymise public bodies in Transparency Orders. The court recognises that local authorities are public bodies, funded by taxpayers, and therefore accountable to members of the public. A local authority/ICB/NHS Trust/other public body cannot be accountable if it acts in secret. The only (rare) circumstance under which the identification of public bodies is banned is when knowing the name of the public body is likely to lead to identification of the protected party.
15. In the event of concern that jigsaw identification is a real risk in this case and non-disclosure of the defendant’s name stands, the project will consider applying to the court to vary the Transparency Order and consider ways of protecting P’s identity other than the current draconian prohibition on naming the public bodies involved (i.e. prohibiting the publication of other potential pieces of the ‘jigsaw’ e.g. the initials used, or precise age).
Claire Martin, Open Justice Court of Protection Project
I sent our Position Statement to the court the night before the hearing, on 2nd February 2025.
What happened at the hearing: Part I – the application to vary the court order preventing naming of the defendant
I was observing remotely. I made sure that I logged on in plenty of time for the 11.30am start. The court associate was very helpful and communicative, joining me in good time on the link, checking that I could hear and advising me that he would turn on the court cameras when the hearing started. This sort of competent administration is exceptionally helpful for public observers – and I imagine for anyone remotely attending a court hearing who isn’t part of the inner world of legal procedures, including, in particular, family members. It communicates that the court is expecting and welcoming us to the hearing, and that we are considered a part of justice. I labour this point a little because not all hearings are the same.
All three counsel were in attendance at court. Another person was at the front of the court, alongside the barristers. I think this is the other family member who is a party to proceedings. She spoke only once in the hearing. The defendant was on remote link with a person who was supporting him (who I think was a legal representative).
I really wasn’t sure what to expect regarding the order of proceedings, in terms of hearing the allegations, findings, sentencing (if allegations were proved) and the issues regarding transparency and reporting restrictions.
I needn’t have worried. HHJ Hilder was exemplary regarding both providing an opening summary of the case and the transparency of the proceedings:
Housekeeping matters – I will give a succinct explanation for the benefit of observers why we are here. Then I will address the TO issues.
Explanation to observers – these are substantive proceedings in the matter of a 25 year-old woman in respect of whom declarations were made by DJ Mullins on 15th January 2024. She lacks capacity to conduct proceedings, [decide on her] care, contact, use of internet and social media, manage her property and affairs including entering into a tenancy. […] Orders were made by DJ Mullins restricting contact [with the defendant] on 25th October last year. [I] discharged [these] earlier injunctions and reframed them in an order material to today’s hearing. It is alleged by the Local Authority [my link cut out for a short moment at this point but the point must have been made that the LA have alleged breach of the injunctions] …. the earlier hearing was adjourned [that would be the hearing reported in our previous blog post, which was adjourned to enable the defendant to get legal representation]. The Local Authority filed a second application in respect of further alleged breaches and today’s hearing was listed to consider both committal applications.Right – the first of the Transparency Order issues – I would like to address, I hope it’s not contentious. Ms Martin has set out a Position Statement requesting the TO regarding substantive proceedings – so that the public bodies’ names can be made public. That DJ Mullins’ paragraph 6 of the order doesn’t apply – doesn’t apply to today. Anybody object?Para 6 of that order includes within the bodies/persons anonymised the LA, ICB/NHS Trust/LD service – Ms Martin.”
I spoke at the invitation of the judge at this point, confirming that we were applying for permission for the public bodies to be named.
Counsel for P (Victoria Butler-Cole) explained the background to why it had been requested that the public bodies should not be named, but she said she did not have instructions yet. The judge asked me if I objected to Counsel for P getting instructions in time for the next hearing, so that she could make submissions then, at which point the judge would decide whether or not to vary the TO and allow the public bodies’ names to be reported. I said that I didn’t object.
HHJ Hilder then turned her attention to the other part of our application: to vary the court order allowing identification of the defendant: “I need to deal now with applying to this hearing […] on 6 Dec […] the order which I made was that names of P, [the second respondent], and MW would not be made public in the listing of this hearing, or elsewhere, but that I would hear submissions at today’s hearing whether they should be disclosed. The first question to consider is: does anybody object [to waiting] until I have decided the substantive matter?
The judge asked me directly if I agreed with her approach to dealing with the substantive matter (the allegations) first. I said that it seemed a very sensible approach. I will report the allegations and committal aspects of the hearing in the next section.
At the end of the committal proceedings HHJ Hilder returned to our application. She asked me if I wished to add anything to our written application, and I said that I did not.The judge then asked counsel for P and for the defendant for their submissions:
Counsel for P: There is a slightly higher risk [of jigsaw identification, if MW is named) just because it is another piece of the jigsaw. We anticipate she [P] will want what [the defendant] wants.
Counsel for the defendant: MW is concerned about his name being made public – but I have a duty to the court not to make inarguable submissions. In light of the judgment in Esper, admissions have been made, I find it difficult to put forward what MW wants me to.
Judge: That is helpful
So, counsel for the defendant was saying that, even though the defendant did not want to be named, he (counsel) could not make that submission because it is ‘inarguable’. This will be because of the very clear judicial rules and case law on the naming of defendants in committal hearings, except in very rare circumstances, which clearly counsel for the defendant did not think were met in this case.
HHJ Hilder then made her ruling in respect of our application (which I reproduce in full – based on my contemporaneous typing of notes, which I attempt to make as accurate as possible (bearing in mind that we cannot record proceedings): “I am going to determine now the application made by Claire Martin of OJCOP in a written Position Statement dated 2nd February 2025, to vary the order which restricts identification of the defendant or alternatively her application was for the court to give a reasoned explanation of non-disclosure [of his name]. The application as it stands now, extends only as far as the defendant. I start by reminding myself of the order which is the substance of this application. Para 4 of the order, made on 6th December [2024]. I provided […] that MW’s name should not appear in the public listings, or other means. I went on to say that the court would consider at this hearing whether that prohibition should continue or be terminated. I included the Open Justice Court of Protection Project – an equivalent provision was made in the order of 29th January [2025], the second committal application. For the avoidance of doubt, the purpose of those provisions was so that I can ensure that court can be clear regarding the nature of proceedings, and on the other hand to preserve the opportunity for hearing any argument as to the naming of the individuals involved.Paragraphs 1-53 in the Esper judgment – in reality it would not be possible to have a sensible argument on identification of …. if names had already been put in the public domain. I reiterate, the reason for the provisions was to preserve the opportunity for argument – in my judgment [that is] the proper administration of justice in communicating the proceedings. At the point of both orders, the defendant had not admitted or been found to have been in breach. This hearing is in public. ANY member of the public could have observed. What is not public is the names of these three people. I acknowledge that the naming of a defendant is an important aspect of telling the story of proceedings. I am fully aware of the discussions of the Rules Committee, regarding changing the rules. At the moment, it is the current rules which apply. 21.85 specifically: the court MUST order the identification. The identity shall NOT be disclosed if and only if it considers non-disclosure necessary to secure the proper administration of justice AND protect the party or witness. It is very complicated. Both must be met. It is the interests of the person whose identity is under consideration.I have given MW’s counsel [permission] to argue the point. I am grateful to Mr Harrison for pointing out to me that the defendant has concerns: to be absolutely clear that in telling me that, he has done his duty to his client. I am also grateful to Mr Harrison for acknowledging that he cannot make improper submissions. He has not asked me to restrict publishing of the defendant’s name any further. ….[missed] None of the other parties has raised any objection to naming the defendant. He has now admitted breaches of the court order; that’s a serious matter which he has put HIMSELF in the position of being in. To that extent, looking at his interests … court has limited [options]…. In short that I am not satisfied that either of the thresholds in 21.8(5) are met and therefore I MUST lift the prohibition on naming the defendant – Mr Wright. [judge’s emphases]
Another public observer, Kim Dodd, raised her ‘virtual’ hand and asked about naming of the Local Authority, to which the judge replied: For this committal hearing – there is no restriction on the naming of the London Borough of Camden in respect of today’s hearing.
What happened at the hearing: Part II – the committal hearing
There are injunctions (with a penal notice attached) against MW, forbidding him from:
having face-to-face contact with P, except as organised and supervised by the local authority;
sending her any communication between 6pm and 9am;
sending her any communication that refers to sexual activities, her health, members of her family, these proceedings, her work or study, or that threaten violence against her;
complaining about P to the police.
Tony Harrop-Griffiths was representing the applicant Local Authority (the London Borough of Camden). He explained the current situation regarding allegations and admissions from the defendant (I couldn’t see him on screen unlike the two other counsel, and the sound from his microphone was poor, so it was harder to catch all of what he said, and my notes have some gaps):
“A number of admissions are made; some don’t go to the allegations… are there sufficient admissions to the allegations… for it to not need to proceed? [… ] remaining allegations: the most egregious is the one at the end, on 18th December, when P was found in his flat, shortly before midnight by two police officers. The seriousness of that is that there had been a hearing on 17th December and MW had attended unrepresented at the time. He suggested that he understood the nature [of the restrictions] and yet he appears that evening … [to have] kept her there for two nights without contacting anybody. The Local Authority is not minded to proceed to prove the other allegations. ….My instructions … as far as the Local Authority is concerned … are to adjourn the hearing for 6 months, in the hope that MW will be able to stick to the terms of the injunction. But it’s important, in P’s best interests, that he does that. It would serve as a reminder if he needed, to not do what he has been doing, which is not in her best interests. The Local Authority must take into account his age and frailty. That’s where we stand generally.”
Counsel for the Local Authority then submitted two changes to the injunction, which were seemingly designed to enable slightly more, and a more realistic approach to, contact between P and MW:
Preventing MW sending text messages to P between 9pm- 9am (currently the injunction is 6pm-9am)
In response to the query ‘Well what happens if P turns up on his doorstep, who is he to contact?’ it was proposed that this did not to be included in an injunction (which is what NOT to do), but that an arrangement should be agreed which is that MW should contact Social Services straight away (on a daytime or out-of-hours number). Apparently, it is quite common for P to turn up unannounced at MW’s flat. It was acknowledged that Social Service was very unlikely to respond ‘immediately’ (especially out-of-hours), and that MW should be allowed to let P into his flat until they arrived.
The judge turned to MW’s counsel and asked what breaches the defendant admitted. MW was represented this time, by Ben Harrison, who explained that MW admitted some breaches, but could not recall exact dates. He admitted:
Allowing P into his flat on ‘various dates’ in December 2024.
Paying for P to stay in a hotel for two nights, and on his floor on a mattress for 2 nights, and not calling Social Services as he had agreed to do (and subsequently she was found there by police officers).
Ben Harrison said ‘they are the extent of the admissions’. The judge asked how MW accounted for the other allegations:
Counsel for MW: The allegations … that he messaged in breach – he’s unable to recall the dates but he admits he has responded to P’s messages. He says, for context, that P herself continues to contact him and he responds to her messages. In respect of the allegation that he corresponds with P about these proceedings … he admits that he DID ask P to tell the truth about her communication with him, that he communicates with her about these proceedings, insofar he asked her to tell truth.[…] . He denies accusing P of being in a sexual relationship but admits … responding to information P gives to him about sexual relationships.
The judge clarified the allegation numbers that were admitted and said that she would ‘turn my mind to whether court needs to proceed in respect of further allegations now admissions have been made‘.
I could see that that judge was trying carefully to manage the committal hearing alongside the ongoing, and what seemed quite precarious (for the teams caring for P) welfare issues. MW’s admissions, the judge said, ‘suggests some positive gain with the opportunity that he now understands the situation.’ Victoria Butler-Cole (for P) pointed out that there had been further breaches but that, now, the ‘one thing that is different is that Mr W has legal advice’.
Cases like this rarely seem straightforward to me – yet the allegations have to be set out as clear, standalone events, decontextualised almost. I thought that HHJ Hilder made a very sensitive decision, that took account of P’s and MW’s situations in the round. She said: have considered carefully the full range of the allegations made in both applications. I take note of fact that Ms Butler-Cole has informed the court that there have been further breaches, but I have set those aside in the context of the current hearing. Looking at the admissions he has today made, I am satisfied that there is some … injunctive orders to be achieved on the basis of those admissions alone. Given that there is that potential, I am satisfied both that it is reasonable, fair and proportionate for the defendant, and in the best interests of the subject of these proceedings, that that potential should be given an opportunity. If it transpires that the potential does not bear fruit, there is always of course the prospect of further application. I am sure Mr Harrison will explain [to Mr W]. To be clear, I accept the admissions that have been made, I do not require evidence in respect of the other allegations, and they may be recorded as withdrawn.Now I think the next step is what the court wants to do in response.”
Counsel for MW advocated for adjournment of sentencing and suggested this was not opposed by the Local Authority. HHJ Hilder then, very helpfully, summarised the proposals: I am conscious of observers … I want to make sure they follow. Having made admissions, on his behalf, Ben Harrison says the court should not proceed to sentence today, but should adjourn sentencing, on the basis that the purpose of proceedings is the substantive proceedings, and to protect [those]. And the purpose of adjourning is to see how things go in the next however long, rather than make a decision today. The Local Authority supports that and Ms Butler-Cole does not oppose it. It seems to me that there is again some potential in that … I am content to take that approach. I will explain to him now.
After some refinements to be made to the injunctive order (the details of exactly how MW can tell P he is unable to respond by text during certain hours, when exactly he must call Social Services) the judge explained her decision to MW: Right MW I am going to address you directly. Can you hear me? [nodded] I would direct you to stand but in view of your medical condition it’s not necessary. What I say is significant and you should listen carefully. Today you have admitted breaching an order of the court. That is a serious matter, for which court has the powers to sentence you to prison for up to two years, seize your assets, or fine you. I am going to adjourn sentencing. The reason I am doing that is because I bear in mind that you have now constructively engaged with the court and legal representatives and have taken steps of acknowledging breaching the order. I take account of the fact you have apologised and accept that apology. I bear in mind your own difficulties in respect of your health and the practical complications that lie at the heart of proceedings. I acknowledge the need for proper arrangements between yourself and P. They are not easy to achieve. Efforts have been and will continue to be made – there is further provision to come back to court if they are not up and running. It is very important that I take you at your word when you say you want to support the Local Authority with care for P. The purpose of the adjournment is to demonstrate to me that you support that care, and by [complying] with orders that the court has made to support that care. You do not know all of the circumstances; you are required to abide by my orders to support P’s care provision. If you do that between now and sentencing, then there is every likelihood that no penalty will be imposed. If you do not, then the possibility of penalties still exist. I hope you bear that in mind.
MW: Thank you
Discussions followed about the precarious nature of P’s care and living arrangements, that she was no longer living in the local area (meaning it’s harder to arrange supervised contact) and that her only real contact is with MW. Victoria Butler-Cole (for P) said: “Welfare proceedings are at a very delicate stage … it is critical she needs to engage with the Social Worker and find a place to live.”
The judge empathised with the potential concern for MW in not responding to P, saying that she had ‘some sympathy with Mr W’s concern for her to not feel abandoned. It is mitigated by the fact that she now has professional carers with her to make sure she doesn’t feel abandoned.’
The court order stipulated that, if P contacted MW during prohibited hours of contact, he may reply once with a message saying, ‘I am not allowed to communicate with you until 9am tomorrow morning’.
HHJ Hilder received submissions regarding how to manage the next welfare hearing and the adjourned sentencing. She decided to hold the next hearing on the 29th April 2025 at 2pm, and for the welfare part of the hearing to precede the sentencing hearing. This will mean that, as long as MW has abided by the court’s injunctions, the ordering of the parts of the hearing will ‘give the possibility of concluding at that time’. The judge’s earlier remarks suggest that – as long as MW does comply – then she is unlikely to impose any sanction on him for breach of the court orders. So, the court needs to know, first, what has been happening since this hearing, in order that, second, an informed sentencing decision can then be made.
This seemed like a very neat way of knitting together the welfare best interests aspect of the case and the contempt proceedings, whilst delivering a compassionate court order that recognised the complexities of the situation, both for P and for MW.
Reflections
I was very pleased to have been able to make the case for transparency in this hearing and HHJ Hilder took what I thought was an extremely clear, systematic and transparent approach to this committal case.
She had ordered that the defendant’s name was not to be published in the public listing for the hearing (contrary to the Practice Direction Committal for Contempt of Court – Open Court); however, she planned this, so that (in her words) “the court would consider at this hearing whether that prohibition should continue or be terminated. … For the avoidance of doubt, the purpose of those provisions was so that I can ensure that court can be clear regarding the nature of proceedings, and on the other hand to preserve the opportunity for hearing any argument as to the naming of the individuals involved”.
Whilst this represented a departure from the court rules, HHJ Hilder, I thought, applied forethought and consideration of the competing aspects of this case – the primary aim of protecting P and acting in her best interests, whilst also taking the principle of transparency very seriously and coming up with a workable solution. There was a careful balancing – in open court – of Article 8 rights to privacy with Article 10 rights to freedom of expression.
Having written the Position Statement (with the support and feedback of the OJCOP Project team), despite feeling nervous (and a bit of an imposter!), my experience of the court process was that it was handled in an exemplary fashion by this judge. I would do it again, as long as I was aware of the relevant legislation and case law.
HHJ Hilder also, in my view, ensured that the court process was understood by observers. This does not always happen. I was not the only observer and – as the Court of Protection sits (generally) in open court – this surely should be a default, to build public understanding of how our laws are applied and to instil our trust in those who deliver justice. HHJ Hilder’s explanations did not take up a lot of court time, and she flagged what she was saying for observers, so we knew to pay particular attention: “I will give a succinct explanation for the benefit of observers why we are here” and “I am conscious of observers … I want to make sure they follow”. Acknowledging the relevance of public observers – and, implicitly, our role in supporting the judicial aspiration of transparency – was very welcome at this hearing.
Finally, in relation to the substance of the hearing itself – and very conscious that I know little about the welfare aspects of this case, including the reasons why MW is subject to contact restrictions with P – I thought that HHJ Hilder took an ‘in the round’ approach.
She seemed to understand the imperfections, tangles and pulls of people’s (messy) relationships – that the young woman at the centre of this case will seek out contact with MW even though he is said (in ways I don’t know) to have harmed her and to be a risk now to her. Despite this hearing being a committal hearing for breaches of court injunctions, I observed the judge show understanding for the unpredictable position that MW might find himself in (“Well what happens if P turns up on his doorstep, who is he to contact?”) and, again, find a workable solution. I have observed other cases where defendants are said to pose a risk of harm to P, and have been subject (in my view) to unrealistic and unworkable orders (such as ‘not to upset’ them, for example). HHJ Hilder’s approach was firmly rooted in what was going to be achievable in the real world outside of the courtroom.
The next hearing in this case (for sentencing) is on 22nd April 2025 at 2pm.
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
I was a Litigant in Person in my dad’s Court of Protection case from February 2024 until his death in August 2024. He died in the care home it was deemed to be in his best interests to be forcibly removed to, from his own home – despite his wishes and feelings to the contrary. In those five months, Dad had contact with his family only to the extent allowed by what we considered an unnecessary, disproportionate and draconian contact plan. Our experience of the Court of Protection (CoP) proceedings and the gagging effect of the Transparency Order (TO) – for Dad, and me and my sister as respondents – piqued my interest in the court and the Mental Capacity Act 2005. During the last fourteen months I have observed CoP hearings regularly.
On Monday 17th March 2025, I started a 20 day ‘study’ of CoP hearings at the Cardiff Civil and Family Justice Centre. I felt much more confident than when I’d nervously observed my first few CoP hearings (which I blogged – under the pseudonym “Jean Louise” – about A newly addicted observer’s reflections.)
I realise that despite how much I have learned, through the approximately sixty hearings I have observed, I still feel a sense of trepidation when preparing to observe, and observing, a hearing. I set out equipped with enthusiasm, preparedness (including, like a kid on the first day of term, new pens and notepad). I even made a spreadsheet.
I do find that observing hearings can be quite a dizzying affair: there are so many courts to choose from when scanning listings the evening before, and often several choices on the ‘menu’ of each. Then there’s all the hearings that get vacated on the day, or those that you don’t get to observe despite your timely request, which means you end up selecting a different hearing from your ‘back up’ list and joining a hearing you know absolutely nothing about.
My decision to focus on a single court for twenty days helped me feel more grounded, able to concentrate on the rhythm and flow of the court. Here is a factual summary of what I observed during the four weeks, and some reflections.
Health warning: unless you’re interested in the details of how transparency does and doesn’t work, this isn’t a particularly interesting blog. Teaser: it gets a bit more interesting at the end, with my account of the final, 12-minute-long hearing I observed.
Week 1
Monday 17th March 2025
Three hearings were listed. I emailed the Cardiff address provided on the listings, requesting to observe one or more of them (two were listed for the same time), and pointing out that the listing didn’t name the public bodies represented in the hearings. On the matter of public bodies in the listing I was told that the matter is: ‘with our development team, and we are awaiting their directions’. In response to my observer request I was told: ‘The 3 hearings that were listed today have now been vacated’. I asked whether, and if so when, the hearings were re-listed, and whether it would be possible for them to share information about the public bodies involved, and if possible let me have the Transparency Orders. They didn’t reply.
Tuesday 18th March 2025
Again, three hearings were listed, albeit with two of them starting at the same time before the same judge (who was ‘sitting in retirement’). None of them gave the name of the public bodies involved in the hearings. I asked Cardiff staff who the applicant/respondent public bodies were, and which of the three I would be able to observe. I was sent a link and Transparency Order (which included P’s double-barreled surname in the file name) for the 11am hearing and was informed that one of the other two hearings had been vacated, and the other was ‘in person’. The TO used the initials “JJW” for the applicant protected party (confirming for me that it was indeed his name that had been used in the file name) and named the respondent as Swindon CC. At 10.13am I received notification from Cardiff that, ‘Judge has vacated the above matter from his list this morning’. So, two days into my study and still no observable hearing – but some concerns about transparency. First that P’s Article 8 privacy rights had been breached by including his name (entirely unnecessarily) in the file name of the Transparency Order, and second that, although the judge had not prohibited naming the public body, the name of the public body had not been included in the public listing.
Wednesday 19th March 2025
Only one hearing was listed; COP 12641952-09 at 10.30am before HHJ Edwards. I received the link and TO (again with P’s surname in the file name) at 7.48am. I noted again, that as with the hearing described the previous day, there was no prohibition in the TO on naming the applicant public body (Ceredigion County Council) but it had not in fact been named in the list.
I joined the link and was looking forward to the opportunity to observe the hearing. But then, before the judge joined, I was grilled about why I was observing by a fairly assertive woman, who said, ‘these are supposed to be closed hearings. This has been an issue before’. I introduced myself, briefly explaining why I was there (I had a right to be at a hearing listed as “public”), and asked whether she was objecting to my presence in her role as a legal representative or as a family member of P. She said she was P’s mum.
Had she been a legal representative, I would undoubtedly have stood firm and argued my position before the judge (the right to stay and observe, unless they really were ‘closed proceedings’ in the legal sense, rather than layperson’s sense, as I suspect P’s mum may have used the term), but I had a moral dilemma in the moment. I said I would remove myself from the hearing to avoid the judge’s investment of hearing time on the matter which perhaps may come at the expense of more important issues for P and his mum. I reiterated that I was leaving out of respect for the requested privacy of P and his family, not because I saw any further reason for me not to observe. I suggested it would be very helpful if in future hearings they could clarify the issue of whether or not the hearings were actually ‘closed’ – or at least “private” – as P’s mum contended.
I was torn in the moment about what to do, and I know some people would have stayed in the hearing unless or until they were asked to leave by the judge (quite rightly in my opinion, as the concept of open justice demands it), but my compassion for P’s family led me to make what I felt was the right choice. As with all of the moral dilemmas I’ve encountered in my life, I’ve later wondered how much more interesting, and fun, life may have been had I made a different choice. I know from my own experience as a Litigant in Person in Dad’s CoP proceedings that the Article 8 (right to privacy) v Article 10 (right to freedom of expression) dilemma exists not just for the court to grapple with, but often for the family members who become involved in what are usually unwelcome and extremely emotional proceedings. As I left the hearing before the judge arrived, this doesn’t count as an observation on my spreadsheet.
Thursday 20th March 2025
There were no listings for Cardiff. I had the day off.
Friday 21st March 2025
Again, no listings for Cardiff. A week into the study and I still hadn’t observed a hearing. I did some gardening and went to the pub, suspecting this ‘job’ was going to be much easier than I’d assumed.
Week 2
Monday 24th March 2025
Only one hearing was listed (COP 20007012), at 3pm before DJ Bayouni. It concerned authorizing a DoLS in relation to care and residence. I received the link and Transparency Order, which again anonymised P with initials on the face of the TO and prohibited identification of P in the body of the Order, but included P’s surname in the file name. Unusually, the public bodies were anonymised on the face of the TO too. The hearing, which I’m not going to detail here, concerned an 80-year-old P who wants to go home but her son & granddaughter live there. There was also a discussion on the need for a deputy to be appointed. I emailed the court after the short hearing: ‘I notice the two public bodies were anonymised in the listing and in the header of the transparency order, but that there is no prohibition on naming them in the body of the order (in para 6). Please could you let me know which Health Board and Local Authority are the respondents in this case.’ I didn’t receive a reply. Another hearing has been scheduled for 22nd May 2025 which I hope I’ll be able to observe and at that hearing I will expect to be able to report back on the case, including the names of the public bodies. On the bright side, a week into my Cardiff study and I had finally observed a hearing!
Tuesday 25th March 2025
Again, only one hearing was listed: COP 12446297. I requested a link the evening before, but received an email at 8.13am on the morning, ‘HHJ Muzaffer has approved an order this morning that vacates today’s hearing, so it will not be going ahead’.
Wednesday 26th March 2025
There were no listings for Cardiff. I had the day off.
Thursday 27th March 2025
There were no listings for Cardiff. I had another day off.
Friday 28th March 2025
There were no listings for Cardiff. I had yet another day off.
Week 3
Over the weekend my attention had been alerted, by the Open Justice Court of Protection Project, to the fact that there is sometimes a mistake in sending listings to Courtel/Courtserve, so that CoP hearings appear in the Daily Cause List (DCL) of a court, and not in the CoP list. It turned out this had happened with three cases listed for Monday 31st March 2025 at Cardiff. (For the remaining two weeks of my study I checked the DCL as well as the CoP list, and this didn’t happen again.)
Monday 31st March 2025
The three listings on the DCL list, all before HHJ Porter-Bryant at 10am, 2pm and 3pm were shown as ‘restricted’. They gave no information about the parties involved in the hearing – so no information about the applicant/respondent public bodies – and no information about the issues before the court. I had plans for the afternoon, so I was only able to request a link to the first one: COP 13290314. I received the TO and found that, yet again, there was no prohibition on naming the public body (Swansea Bay University Health Board) – but it hadn’t been named in the lists.
This was an interesting case concerning a young person, which I observed along with a member of the Open Justice Court of Protection Project. I won’t describe the hearing here, partly because it may well be the subject of a future blog.
Tuesday 1st April 2025
There were no listings for Cardiff (either on CoP list or DCL). I had the day off.
Wednesday 2nd April 2025
There were no listings for Cardiff (either on CoP list or DCL). I had another day off.
Thursday 3rd April 2025
There were no listings for Cardiff (either on CoP list or DCL). I had yet another day off.
Friday 4th April 2025
Finally, after three days with nothing, a listing! Just one, for an 11am hearing before His Honour Porter-Bryant: COP 20012119. As usual, the list didn’t name the applicant/respondent public body. I received the link along with TO (which anonymised P with initials on the face of it and in the file name – progress! – though there was no judge’s name on the order). The TO showed the applicant as JD (by his proposed Litigation Friend) and the respondent as Neath Port Talbot County Borough Council and there was no prohibition on naming the public body, which again causes me to wonder why the name of the public body hadn’t been published in the list.
Then, at 11am I received an email: ‘Please be advised that the below hearing has now been VACATED’. Another one bites the dust.
Week 4
The final week of the study! With still with only two observations under my belt, I hoped for a busy week.
Monday 7th April 2025
There were no listings for Cardiff (either on CoP list or DCL). I had the day off.
Tuesday 8th April 2025
There were no listings for Cardiff (either on CoP list or DCL). I had another day off.
Wednesday 9th April 2025
There were no listings for Cardiff (either on CoP list or DCL). I had yet another day off.
Thursday 10th April 2025
Finally, another hearing, again the day’s only hearing, at 3pm before District Judge Bayoumi. COP 1214515t[1].
I received the TO, again with P’s surname used in the file name. Again I noted that the TO does not prohibit naming the public body, but the public body is not named in the list.
The was the shortest, rarest and potentially most interesting hearing I’ve observed. I have no idea who the LA in this case was – the TO only showed the initials of the applicant party, and it may not even have been a LA, though I assumed it was because it was about contact. Below is a close summary of the exchange (not to be taken as verbatim). It started at 3.04pm.
Judge: Good afternoon Miss Minton and Miss Newport. I have read the 61-page hearing bundle and your Position Statements. Is my understanding correct that all parties agree with the conclusions drawn by Miss Lock, that (P) has the capacity to decide to see Mr D, his father?
Counsel for the LA (hard to hear, it seemed partly due to court acoustics, and partly due to her muffled, almost sheepish replies): ….he’s a vulnerable young man
Judge: If he has capacity, I have no jurisdiction. I’m satisfied reading the reports of Miss Lock that it’s abundantly clear (P) has capacity to make these decisions. Therefore, your application is simply dismissed.
Counsel for the LA (inaudible):…..home….
Judge: These are not Children Act proceedings. We’re nowhere near that territory.
Counsel for the LA: No Maam.
Judge: As difficult as it may be for you to accept Miss Minton. Miss Newport?
Counsel for P (again hard to hear, due to court acoustics rather than any sense of sheepishness): .. The application should be dismissed…. we are nowhere near SA (probably a reference to In the Matter of SA [2005] EWHC 2942 (Fam))…. There’s no suggestion of influence…. what’s been achieved… it should be dismissed.…(P) has capacity… he has autonomy.
Judge: Did the applicant see the previous assessment?
Counsel for the LA: No
P’s Dad: I want to see him. It’s been prevented by (P’s ?) mother.
Judge: There’s no evidence. Even if ED (P’s father or mother?) influenced P, unless the threshold is met for a Section 9 judge that’s the end of the matter. P has capacity to decide on contact with his father. The court is satisfied it has no jurisdiction. The application is dismissed. (To Counsel for P) You’re not seeking an order for costs?
Counsel for P: No, but it would be a shot across the bow if they came back again with another application. A recital should be added to the order about P having autonomy and clear wishes and feelings which are to be respected.
Counsel for the LA: …. just who he spends time with….
Judge (to Counsel for the LA): Do you object to the inclusion of such a recital?
Counsel for the LA: There’s no need to include it.
Judge: It may provide (P and his father) some reassurance. Why shouldn’t it be included?
Counsel for the LA: The content is implied from the previous recital and doesn’t need it.
Judge: It’s a neutral position. It will be reflected in a recital. Please file a new order with me by the weekend. Good afternoon.
It was 3.16pm, the hearing had lasted only 12 minutes but had been eye-opening. I began to wonder how many such evidently problematic applications are generated in the context of ongoing Court of Protection proceedings.
Friday 11th April 2025
The last day of the study. Again, only one hearing was listed, yet again with public body / bodies not in the listing: COP 14234112 at 10am before DJ Morgan. I didn’t receive a TO but received an email at 8.56am to say that the hearing had been vacated. I subsequently requested the TO, but didn’t receive a reply. This ended the four-week study on a bit of a damp-squib, as it had started.
Reflections: The challenges of transparency
There were 15 hearings listed for Cardiff over the course of these 20 days. Of these, 8 were vacated (I have no way of knowing whether the one in person on Day 2, or the two hearings on the afternoon of Day 11, were vacated or not). The vacation rate is therefore a figure between 53% and 73%. There is an excellent blog (here) which explores the various reasons for hearings being vacated (and of course no one would want to add the cost of an unnecessary hearing), but the high percentage of on-the-day vacations in this study did surprise and concern me.
Despite my best efforts, I only managed to observe 3 hearings, and I received 6 Transparency Orders.
Not one of the 15 hearings listed for Cardiff over these 20 days gave the names of the applicant/respondent public bodies, yet not one of the Transparency Orders I received prohibited publication of the name of a public body. It has been difficult or impossible to get information about the names of the public bodies involved – staff haven’t replied to my emails requesting this information. (Also one of the 6 TOs does not give the name of the judge who made it!)
While protecting the names of public bodies (and a judge) from public scrutiny, the privacy of the protected party was jeopardized repeatedly. All six of the Transparency Orders I was sent prohibited publication of P’s name, but four of the six used P’s surname as part of the file name for the Order itself (including one that P’s mother claimed – probably wrongly – was a “closed” hearing!).
I had hoped that after four weeks of cajoling, I would be able to report that ‘Cardiff is now routinely including the names of the public bodies on their listings’, but sadly, despite my request to several members of staff during these four weeks, Cardiff are still not including the public bodies in the listing.
As the general public, and as taxpayers who are funding much of the Court of Protection’s costs, we have a legitimate expectation that these public bodies (who, unlike P, should be open to the scrutiny of the public) should be named in all but the most exceptional of cases.
Kim Dodd has previously blogged for the Open Justice Court of Protection Project (“A newly addicted observer’s reflections“) under the pseudonym of “Jean Louise” as she was at the time a respondent in her dad’s CoP proceedings and subject to a Transparency Order preventing her from identifying herself as a family member of a protected party. That TO has only recently been discharged as a result of her dad’s death (the order had effect “until further order of the court OR the death of P“). Having retired early from her own corporate career and studied for a Master’s of Law, Kim has developed her interest in law generally and particularly in the area of the law on coercive control. She is on LinkedIn (here).
[1]On a sidenote, I have long been intrigued by the ‘t’ that (sometimes, though not often) replaces the 8th digit in CoP case reference numbers. I observed a few hearings to try and work it out (which it transpired I couldn’t – though I was able to eliminate some of my theories, such that it may indicate a ‘translator’ was required). I asked the court after this hearing and was told the following: ‘The case numbers with a t were generated by our old case numbering system. As far as we know there is no significance to this change and they were just generated at random.’. If anyone can confirm or deny this account it would be much appreciated.
Last weekend I read through the 300-page court bundle of documents associated with my mum’s Court of Protection (COP) case for the very first time in its entirety.
At the hearing in June 2022, I’d been a Litigant in Person (meaning I represented myself and didn’t have a lawyer) – but at that point I’d only read the principal documents such as witness statements and position statements. And after the hearing I just wanted to forget about it. In any case, I don’t think I would have understood a lot of it then. Nearly three years on, I have learned so much more, although recent events have led me to realise that there is still so much more to learn.
Reading the full bundle has helped me to piece together more about why we became involved in a COP case, which I have never fully understood. Why us? But the jigsaw is coming together. And I was shocked and upset by what I discovered. Reading the bundle brought all the emotions back, not least reading Mum’s words and realising the impact of her dementia, then and now.
I could write pages but I will pare it down to the minimum for now. Because I am still subject to some reporting restrictions (and my three siblings are still subject to all the standard reporting restrictions), I will use random initials and no identifying information.
I’m sharing this not to blame anyone but to hope that there is learning from it, and to give a voice to other families who can’t speak out about their experiences of similar situations. And of course anybody, at any time, could become a family member of a protected party (‘P’) in a Court of Protection case.
Here’s the story:
In 2013 Mum shows the first signs of forgetfulness. Me and my siblings (I have two sisters and a brother) all agree that Mum should appoint us with Lasting Powers of Attorney (for Finance and Property and for Health and Welfare) so that we could make decisions for her if, in the future, she’s not able to make her own decisions. For practical reasons, we all agree that my sister MC and her husband HC will do it. They are both qualified accountants (as am I, the replacement LPA). Mum willingly agreed to it, once I had explained to her about it. It was done after a visit to a solicitor, attended by me and Mum.
In 2016 Mum is formally diagnosed with dementia.
For many years, MC devotes a significant portion of her life to caring for both Mum and Dad, at the same time as having her own school age children and working. A typical ‘sandwich” carer. This includes sorting out a care package of four visits a day for Dad (after he suffered a stroke) at the home he and Mum share.
Dad dies in 2019. The family agree that Mum needs her own care package and MC sorts all this out. Mum has three and eventually four visits a day from carers. During the covid pandemic lockdowns, MC organises everything for Mum, including all her shopping. She takes over Mum’s finances in order to pay the bills as Mum can no longer manage. She always keeps the rest of us informed about everything.
MC spends more and more time caring for Mum, on top of the care visits by professionals. It’s difficult, as Mum doesn’t think she needs any care and doesn’t accept she has dementia. She resents MC and the professionals interfering with her life. She says she can look after herself. She says she just wants to be left alone.
Over time, all four of her children become increasingly concerned about her wellbeing, both mental and physical, especially the risk of her setting fire to the house because of her smoking habits. MC and I contact social services for additional support as we are so worried. There are a couple of visits, but they say that they can’t do anything more.
In 2021 the problems escalate and a new social worker gets involved and responds to our plea for support. Crisis point is reached and we all agree, us four children and the social worker, that the point had finally been reached that Mum should move to a care home providing specialist dementia care. It is July 2021.
As MC and her husband hold LPAs for Health and Welfare, we assume that they can make that decision. After all, we thought that was the point of having one in place:
‘A health and welfare LPA gives your attorney the power to make decisions about your daily routine (washing, dressing, eating), medical care, moving into a care home and life-sustaining medical treatment. It can only be used if you’re unable to make your own decisions.’
9. The family decide that my brother would take Mum to the care home as we know my Mum will blame MC. She blames her for everything, in spite of all that MC does for her. Mum settles in pretty well. She is vocal about not wanting to be there, though, when anybody asks.
10. We think Mum will be there for good, as we can’t see any way that she’d be able to leave to live independently again. We agree to sell the family home, to pay for the care home fees and to pay off the equity release debt, which we understand has to be paid back when a person moves into full time care. So mum is a self-funder.
11. Although the social worker explains that it would have to be initially respite care, we assume it will be a formality to transfer that to permanent care. We have never heard of Deprivation of Liberty. We start hearing inklings, although nobody ever really explains it to us. ‘Court’ is mentioned. We don’t know what court. We try and find out more from friends who might know. They say ‘Oh, it won’t get that far’. Including a friend of mine who is a GP.
12. Nobody tells any of us, including MC, that a paid Relevant Person’s Representative (RPR) is appointed to represent Mum. This is because we all agreed that Mum should move into the care home and we are therefore deemed not to be able to represent her, since Mum’s expressed wish is to leave the care home. (I only learned this very recently).
13. The RPR never speaks to MC, HC, or us three other children.
14. Mum continues to say, when asked, that she doesn’t want to be there. But she doesn’t display any behaviour of trying to leave. And when I take her out into the community, she willingly returns to the care home.
15. Reading through the court documents, Mum says a lot of things when speaking to professionals. Included among the things mum is reported as saying are:
I am 200 years old
The Queen visited my mother
The decorator in the home is from my home town
My daughter has put me in a home because she is after the money from my house.
I led hundreds of children over the mountains to save them from the Japanese (in the second world war).
I read about these in the court bundle. But they don’t surprise me as Mum still frequently says them, plus a lot more. None of them are true.
16. The RPR decides that, based on speaking to Mum, Mum is happy for a judge to decide where she should live. She first contacts a solicitor in November 2021, after meeting Mum remotely (because of Covid restrictions). Family are not consulted at all. Mum tells other people, including the social worker, that she doesn’t want to go to court.
17. Mum tells me and MC to watch out as “they” are out to get us.
18. The Official Solicitor is appointed and the court application is prepared and sent in. Reading the bundle this weekend, I have confirmation of what I had always suspected. It is clear from the documentation that somebody, somewhere, believed that Mum was speaking the truth when she said that MC was after the money from her house. The Statement of Facts, a document sent in with the court application, only mentions MC. None of us other siblings are mentioned in that document. The implication is that MC is an only child. I’m not sure who prepared the Statement of Facts. Paragraph 5 of that document is damning. It focuses on the sale of the house. In my opinion, anyone reading that paragraph will believe that the house sale is suspicious. The two A4 pages of Statement of Facts is compiled from pages and pages of documentation that many people would read and come to a different conclusion.
19. MC receives a letter in April 2022 saying ‘Ms X’ (Mum, who has always been ‘Mrs’) has applied to the COP, and with some forms for MC to fill in ‘only if you wish to participate in proceedings’.
20. On receiving the letter, MC phones the solicitor to ask if she can send the form to her sister (me). The solicitor she speaks to replies ‘But you’re an only child’. MC replies ‘No, I have a sister in France’. The solicitor replies ‘No, you’re an only child’. MC says ‘No, I have three siblings”. At which point the solicitor says she will call MC back. MC then receives a call from a more senior solicitor. The senior solicitor says that only MC is named on the DoLS form(s?), and that is why the rest of the family were not contacted as interested people. This is repeated in the court documents in the bundle. On reading the reams of pages used to prepare the Statement of Facts, it is clear that Mum has four children. Even the RPR refers in the documentation to Mum’s children. The other person holding LPA for Mum, my sister’s husband, HC, is never mentioned by name in the documentation, only briefly as MC’s husband.
21. I send an email myself to the solicitors to try to find out more. But MC is told that as her siblings are not included in the application to the CoP, they cannot speak or communicate with anyone except through MC.
22. I want to learn more about the COP and search on the internet to find out more. I come across the Open Justice Court of Protection Project by chance. I start observing COP cases and with the support of Celia Kitzinger I ask to become a Litigant in Person (a party), so that the family can have a voice in the hearing. And so that we (as people who have known her all our lives) can try to make sure that Mum’s voice is heard.
23. MC and I attend the remote hearing held in June 2022. During the hearing, I am joined as a party by the judge, as requested. This means I receive all paperwork including the bundle. We ask the court’s permission to talk to our siblings about the hearing, which is given.
24. There are two subsequent round table meetings (lawyers, MC and me, Social Worker, care home staff) and everyone agrees that it’s in Mum’s best interests to remain living where she is. The court order includes certain things to reduce the restrictions on Mum, such as ensuring access to the community by going to the hairdresser. The hairdresser is a longstanding friend to Mum, and like another daughter to her. It was the one place she regularly went to, up until the very end of her life at home – taken by MC once a week on a Friday.
25. The final hearing in December 2022 is vacated (it doesn’t go ahead) because there is an agreed order. We are very happy with the outcome and it is all resolved amicably.
26. Life goes on. Family take Mum to the hairdresser as regularly as possible. MC continues to do most of the liaising with the care home, carries on paying the bills, buying clothes for Mum, and taking any phone calls from professionals. Etc Etc. All of us visit Mum regularly. My other sister visits often, and takes Mum’s greatgrandchildren when she goes, and they take Mum out. My brother also goes to visit regularly. We all are in agreement about everything to do with Mum’s care and where she lives. We are all very happy with the care home and how Mum is being looked after.
27. Mum has made friends. There is continuity of staff, who know her very well, and can cope with the ups and downs of her behaviour caused by the dementia. She says one of the carers in particular is like a son. I have the utmost admiration for them. Caring for people with dementia is so difficult on the whole, although I’m sure it has its rewards too. The care home activities team are wonderful.
28. Mum is now 91 and very frail. She has severe dementia but thankfully still recognises us. And depending on her mood, she still blames MC for where she is. But not the rest of us children. She at other times says how much she loves MC and how she has been badly treated. It depends on her mood. She remembers nothing about the court case and didn’t understand it at the time either.
29. Mum still gets distressed by people asking her official questions, as was the case at the time of the COP proceedings She still just wants to be left alone. As the court documents state she said, and as we know from knowing her all our lives, the most important things to her are her family and her faith.
30. MC receives a phone call annually about the DoLS assessment. It is a different person every year. In 2023, the Best Interests Assessor asked her if she knew Mum had been involved in a court case. Last week the new Independent BIA said that Mum was in a good mood. She also mentioned that “K” continued to visit Mum once a month.
31. This comes as a shock. We have no idea somebody is visiting Mum once a month. Nobody has ever told us.
32. When I contact the care home, they say they assumed we knew as it was ‘something to do with the court case’.
33. I want to find out who ‘K’ is and why she is visiting. And why nobody has spoken to the family about her. And why she has never spoken to MC. There is no information on the annual DoLS form and nothing in the court order about continuing visits from anybody. Nobody is named as RPR on the form.
34. I ask myself: Is this usual? Is this what should happen? And where does the official function of an LPA fit in? Has anyone recently determined that this visit by a stranger once a month is in Mum’s best interests? Especially as we know, and the court documents show, that Mum gets distressed when asked questions by officials.
35. I email the DoLS team. The Independent Best Interests Assessor comes back to me very quickly, thankfully. It seems that ‘K’ is a paid RPR. She doesn’t visit Mum monthly, but “regularly”. She says that family can take on this role. I enquire more and the DoLS team say it doesn’t cost Mum or the family anything as the Local Authority pay for it. They suggest that MC takes on the role but I want to do it. MC has dealt with so much and I know more about the role.
36. The Independent BIA confirms that I can take on this role and the paid RPR won’t be needed any more. I am delighted by this and am grateful to the DoLS team, and Independent Best Interests Assessor, for their reactivity. But disappointed that maybe I could have been doing this ever since the court case.
37. The original RPR is no longer involved. I don’t know when she stopped being involved.
And that is, currently, the end of the story.
Professionals come and go but, for the vast majority of the time, family are constant. The vast majority of families want to do the best for their loved ones and spend many hours caring for them. In my opinion, safeguarding training creates an overly suspicious attitude towards families. And once a label or suspicion is attached, it’s hard to shake off.
There have been many positive consequences for me. It has brought us as a family closer together. I have found new purpose in life. I am passionate about open justice. I also want to shine a light on what going through COP proceedings can be like for families. That’s why I’m doing a PhD which focusses on this. I hope by shining a light, it will help families, many of whom are prevented from speaking out themselves by ongoing reporting restrictions.
I hope the professionals will understand more about what it is like for families. In an ideal world we all need to work together collaboratively for the best interests of ‘P’.
There have been such negative consequences – emotionally, reputationally (especially for my sister MC), medically (the young social worker who supported us ended up going on long-term sick leave, and I’m convinced this was at least a partial consequence of our case, as it was the first time she had been involved in COP proceedings). And financially. What a huge cost to the taxpayer. Could there not be a way of avoiding going to court in this sort of situation? And the ongoing role of paid RPRs seems to be little understood.
Finally, I am writing this blog especially for my sister MC. So that all that she has done for Mum is publicised. So that she can be seen for the generous, kind and caring person she is, rather than as a suspect family member. She can’t speak about it so I want to. I hope one day soon she can.
Amanda Hill is a PhD student at the School of Journalism, Media and Culture at Cardiff University. Her research focuses on the Court of Protection, exploring family experiences, media representations and social media activism. She is a core team member of OJCOP. She is also a daughter of a P in a Court of Protection case and has been a Litigant in Person. She is on LinkedIn (here), and also on X as (@AmandaAPHill) and on Bluesky (@AmandaAPHill.bsky.social).
By Amanda Hill and Claire Martin (with acknowledgment of significant input and support from Celia Kitzinger)
Update 26 May 2025: The application to vary the reporting restrictions was successful and a judgment, [2025] EWCOP 16 (T3), was published on the National Archives Friday 23 May 2025. We will blog about the hearing to vary the Transparency Order later. But we are now allowed to report that this committal hearing related to COP14187074. This is a case we have blogged about previously:
A few months ago, we observed a committal hearing at the Royal Courts of Justice at which someone was found to be in contempt of court for having breached undertakings and injunctions and given a (non-custodial) sentence.
We believe that the way these proceedings were managed does not meet the judicial aspiration for transparency in the following key ways:
The public don’t know that the committal hearing even took place, because it wasn’t listed correctly as a committal: there was no public information in advance of the hearing about which public body made the committal application, and no record of the name of the person who faced being sent to prison, or fined, or having herassets seized[1].
The judgment – which does name the local authority and the defendant – has not been published. This means there is no public record of what undertakings and injunctions the defendant was found to have breached, or what sentence was handed down. There is also no public record of the applicant’s and defendant’s names: we’ve been unable to find the defendant’s name on the judicial website.
We are banned from reporting on the substantive content of the committal proceedings including, in particular, reporting on the proceedings in any way that connects the committal with the previously published fact-finding judgment in the same case, and with our blog posts and other published legal commentary about the case.
Here’s what happened in relation to each of these concerns in turn. We’ll chart the problems here and then turn, in the second part of the blog post, to what actually happened in the hearing we attended[2].
1. The hearing wasn’t listed as a committal hearing
This was not complied with. Neither the name of the applicant nor the name of the defendant were provided in the public listing on the Royal Courts of Justice public website, and nor were the words “committal to prison” used.[3]This was apparently a mistake and not as a consequence of judicial direction: “With regard to the incorrect listing of the committal (which is also acknowledged in the judgment itself), this was due to an administrative error in the listings office. The court apologises for this”[4].
We knew it was a committal hearing because people involved with the Open Justice Court of Protection Project have been following this case for a while, and we knew that a committal hearing had been planned for this case on that date with this judge and we had arranged, in advance, to attend in person. We also advertised the fact of the upcoming committal hearing on our WhatsApp group for people interested in observing hearings, and we’d supplied links to the previous blog posts and judgment: one other observer attended remotely as a result. We do not know whether the judge had alerted the Press Association to this hearing – as also required by the Practice Direction – but in any event no journalists were in court.
2. There is no published judgment
A judgment was handed down which finds the defendant in contempt of court on five grounds and imposes a (non-custodial) sentence upon her.
We have been sent a document with 50 numbered paragraphs setting out the background to the case, the grounds on which the applicant local authority claims that the defendant is in contempt of court, the judge’s views on the evidence, and her decision and sentencing. The document resembles a published judgment in its format and layout, save that it specifies on its face that the judgment is “ex tempore”, and the space where the “Neutral Citation Number” should go has been left blank. A recital at the beginning of the judgment says that it is ”PURSUANT TO the guidance in Esper v NHS NW London ICB (Appeal: Anonymity in Committal Proceedings) [2023] EWCOP 29)” – which is the leading case law on the matter.
There is no legal requirement on the judge to publish the judgment because, although the defendant was found to be in contempt of court, she was not sentenced to prison. According to Poole J in Esper:
“If the court finds the defendant in contempt of court but does not make a committal order, then a reasoned judgment must be given in public and the defendant must be named in court and their name published on the judiciary website, but there is no requirement for a transcript of the judgment to be published on the judiciary website, although the court may choose to do so.” (§54(x)(b) in Esper v NHS NW London ICB (Appeal: Anonymity in Committal Proceedings) [2023] EWCOP 29)
We’ve been told that the judge “does not intend to publish her committal judgment” (email from judge’s clerk), so it will not appear on any of the usual sites (BAILLI, The National Archives, or the judicial website) where members of the public can access it.
We note that – contrary to the guidance in Esper (§54(x)(b))quoted above– there does not seem to have been any publication of the defendant’s name on the judiciary website (at least not where we’ve been able to locate it).
So, for now, only the people directly involved in the case and those of us associated with the Open Justice Court of Protection Project, are aware that a named individual has been found in contempt of court for breaching specific undertakings and injunctions, and she has been sentenced for those breaches, and what the sentence is.
3. A new reporting restriction effectively bans us from reporting the substantive content of the committal proceedings
During 2024, observers watched hearings in this case and blogged about them in compliance with the reporting restrictions imposed by the court, which were in all relevant respects those set out in the “standard” Transparency Order.
In 2025, the judge made a new Transparency Order (TO) specifically for the committal hearing. This is common practice because the “standard” Transparency Order states that the injunction “does not apply to a public hearing of, or to the listing for hearing of, any application for committal” (§9(iii) in the template, though its paragraph number may be different in any actual TO). The “standard” TO doesn’t apply to committal hearings because they are a different kind of proceeding, with rules all of their own[5].
In committal hearings, the name of the person facing a prison sentence should usually be published – even if publication of their name had previously been prohibited because they are a family member of the protected party.
Here’s the salient part of the 2025 TO.
Like the 2024 TO, the new TO in this case prohibits publication of the name of the person who is the subject of the Court of Protection proceedings and anything that is “likely” to identify her, or where she lives, or the name of her carers. But it does not specifically prohibit us from naming the family member who is the defendant in this committal hearing. The defendant’s name appears on the face of the unpublished judgment – as does the name of the applicant local authority – as well as, several times, in the body of the judgment itself.
The problem we face in writing about the case is not that we cannot name the defendant – we can! – but that the new TO (unlike the previous one) prohibits publication of information “that identifies or is likely to identify the specific relationship” between [the protected party] and the defendant – and this information is already in the public domain.
The “specific relationship” (i.e. the nature of the family connection between P and the defendant, e.g. aunt/niece; grandmother/granddaughter) is revealed in the publicly-available fact-finding judgment in this case, published in 2024 a few months before the committal hearing took place. In the opening paragraphs of that judgment, the judge says of the person who is now the defendant that she “is P’s [X]” – where X names the “specific relationship” between them – and in the course of that judgment, there are more than 100 references to this “specific relationship”[6].
Of course, at the point that judgment was published, the family member referred to in the fact-finding hearing was not yet a “defendant” in a committal hearing – but the judge helpfully says, in her 2024 judgment that there will be a committal hearing concerning this family member[7], and she names the date. So, anyone reading the 2024 fact-finding judgment –available on public websites – has unfettered access to information about the “specific relationship” between the defendant-to-be and the protected party.
We have experimented with google searches and with the search facilities in BAILLI and the National Archives to ascertain what information is “likely” (the word used in the TO) to lead people to uncover the “specific relationship” between the defendant and the protected party, as referenced repeatedly in the published judgment. Obviously, this includes any explicit link to the previous judgment (we would normally consider it good practice to provide the judgment name and an electronic link). Since (it turns out) this judge is not a prolific publisher of judgments, information “likely” to lead people to her previous judgment in this case, also includes: the judge’s name, the date of the hearing, names of counsel, and distinctive facts about the undertakings and injunctions breached by the defendant (also covered in the ‘fact finding’ judgment).[8]
The Open Justice Court of Protection Project also published blog posts over the course of 2024 making explicit the “specific relationship” between these family members – as have other legal commentators. At the time these blog posts (and legal commentaries) were published, this was not prohibited by any court orders – and it is well established that reporting restrictions cannot be imposed retrospectively (Roberts J, §109 in Re BU[2021] EWCOP 54). We would normally provide links to previous blog posts (and perhaps to legal commentaries) as part of our effort to present a case ‘in the round’. We cannot do that now without breaching the 2025 TO.
What all of this means is that we can’t report on the committal hearing in any way that relates it either to the public judgment that the (same) judge has already published about this case, or to our previous blog posts or to others’ legal commentary about the case. To do so makes it “likely” that readers would be able “to identify the specific relationship between [the protected party] and the defendant” (TO, (4)(iii)).
In effect, the reporting restrictions in the 2025 TO sever the link between the committal hearing and everything that has happened in this case previously – as reported in the judgment, blogs and legal commentary from 2024[9].
This is a very serious interference with the public’s Article 10 rights to freedom of information. Thousands of people have read our previously published blog posts about this case. There is a legitimate public interest in learning what happens when family members are found to have breached undertakings and/or injunctions in the Court of Protection. The effect of the injunction against us is that people can read about the events leading up to the committal hearing (in our blogs, in the legal commentary and in the 2024 judgment that announces the forthcoming committal proceedings) – but the trail stops there, with no public report of the committal itself.
We have submitted a formal application for variation of the Transparency Order to remove §4(3) (i.e. the prohibition on naming the “specific relationship” between the defendant and the protected party).
Why and how did the judge make the 2025 Transparency Order?
We attended this full-day committal hearing in person at the Royal Courts of Justice in London.
The hearing began without us having had sight of a Transparency Order. We’d asked counsel for the TO (and for the Position Statements) immediately before the hearing started, but it seemed there wasn’t one – not even in draft form for the judge to approve.
Consequently, the question of reporting restrictions was the first issue for the court to address.
Because – as a consequence of the “administrative error in the listings office” – the defendant’s name had not yet been made public via the committal listing as it should have been, this raised the possibility of a Transparency Order banning publication of her name altogether. The parties took different positions on this point.
Counsel for the Local Authority opened the proceedings by citing Esper and saying that the default position in committal proceedings is that the name of the defendant should be published. The court should also consider whether additional reporting restrictions were needed in view of the possibility of ‘jigsaw identification’ of the protected party once the defendant’s name was in the public domain, but “the predicament that [P] faces is already well-known to those who know her … and this is not a case where she would be placed at risk, for example from vigilante groups if the defendant’s name is published…. So the defendant’s name should be permitted to be published and the TO should be amended to permit that”.
Counsel for the Defendant submitted that the judge did have the power to make an order to prohibit reporting of the defendant’s name, and that she should do so because “the reporting of [defendant’s] name is almost bound to lead to [P’s] name being revealed” because of the specific family relationship between them.
Counsel for P (via the Official Solicitor) had not yet received instructions but took the interim position that the new Transparency Order should continue the protection afforded by the previous Order to the identities of P and her carers, and that “the only issue is whether [the defendant’s] name should be permitted to be reported”. He accepted that there is a risk of P being publicly identified as a result of identification of the defendant, who is a member of her family. The judge asked whether there was a way to prevent reporting of the specific relationship between the defendant and the protected party, and counsel said yes, “that happened in Esper – the defendant was identified only as a ‘relative’, so that may be an avenue”.
The judge decided to “see where we get to by the end of the day” before making a decision about the reporting restrictions – not least, since there would be different requirements concerning publication of a judgment depending on whether or not she handed down a custodial sentence (which would require a published judgment). She reflected out loud however that “I wouldn’t want [the defendant] to be identified as P’s [specific kinship relation]… ‘Relative’ is a better approach”.
Counsel for the Local Authority pointed out, in response, that “the only thing is, if there is a published judgment from today, is it going to have the case number on it? That is a difficulty because the case number is linked to the previous hearings and will identify [the defendant] as the [specific kinship relation] of the protected party…. It would be obvious that [the defendant] is the [specific kin]”.
The judge accepted this, remarking “the cat would be out of the bag”. Pending determination of the reporting restrictions, she ruled that we could not report at all during the hearing – including a reporting restriction on the discussion about the reporting restrictions.
The parties then focussed on the matter of the committal, of which we can provide only a minimalist account. Essentially:
The defendant admitted breaches to undertakings she’d made regarding contact with the protected party – including having unsupervised contact and behaving towards P in ways that caused P to become upset and distressed. But she did not accept that she was in breach of the two terms of an injunction (the details of which we can’t give).
In relation to breach of the injunction (not admitted), a carer was sworn in to give evidence and be cross-examined about an “incident” she witnessed at which the defendant allegedly raised matters known to be upsetting to the protected party.
The defendant exercised her right to silence and did not give oral evidence (which is apparently a choice from which – it was determined – the judge can draw adverse inferences).
Counsel for the Local Authority argued that the evidence of the witness met the criminal standard of proof for a breach; the defendant’s counsel argued that it did not; and on behalf of P, the Official Solicitor took a neutral stance.
The judge found the defendant to have disobeyed the law and to be in contempt of court on all the grounds raised (bar one that was withdrawn by the Local Authority), including breach of the injunction.
The parties made submissions about the appropriate punishment – nobody argued for a custodial sentence: the breaches were said not to meet the requisite threshold (the Local Authority), not to be in P’s best interests (the Official Solicitor) and not to be merited given the “loving” relationship between the defendant and P, and the defendant’s commitment to P’s best interests as she sees them, at a time of some personal difficulties for the defendant. The judge imposed a penalty short of a custodial sentence. There was no application for costs.
The court then returned to the matter of reporting restrictions. The focus was firmly on the matter of whether or not the defendant should be named.
Counsel for the LA: Talking about whether a defendant’s name should or should not appear in the court list, it [i.e. Esper, specifically, “Conclusions on PD 2015 and COPR r21.8(5) §54 III”)] says the defendant should be named, that anonymisation is derogation of open justice.
Judge: I assume [the defendant’s] name was listed in the court list?
Counsel for the LA: No. ((Judge shakes head)). Mr Justice Poole noted in that case [i.e. Esper) that it was not the first time it (i.e. failure to name the defendant in court lists) had happened. So, your order was not followed. I don’t know if there’s anything you can do behind the scenes in future to prevent that happening. [The defendant’s] name should have been made public prior to today’s hearing. ((He then took the judge through the relevant law and guidance, concluding that the defendant should be named in the judgment.)) We can’t say [the defendant’s] name should not be published in order to protect [P’s] identity. There’s always a risk of jigsaw identification. You’ve already anonymised the initials in the previous judgment. This is not a case where harm would come to [P] if her name was inadvertently found out, even though there would be prohibition – our understanding is that the wider family and those caring for [P] are aware of the dynamic in the family and aware of the COP proceedings […]. The interests of open justice should prevail. There is public interest in learning the identity of people who are subject to committal proceedings. In this case, this is not a high-profile case with a lot of media attention. If people do find out, they are prevented from publishing the name of [P] in any event…. Your judgment from [2024] did say that there would be contempt proceedings in the New Year…. We say there is public interest in knowing what’s happened in that application.
Counsel for the defendant returned to the problem that, in their view, identification of the defendant would “inevitably” lead to public identification of P. He suggested that “it may be that taking different initials is the approach the court takes” (i.e. using different initials for the parties in the contempt proceedings from those used in the fact-finding proceedings) in order to avoid “the two judgments [being] linked”. He said: “My instructions are to raise concerns about P being identified, and to ask the court to give consideration to ways those risks can be minimised. Of course, the obvious way is for [the defendant] not to be named at all, but the court needs to consider open justice…. I suppose my closing submission is this: if the court considers that naming [the defendant] has the inevitable impact of identifying [the protected party] as P within the Court of Protection proceedings, then if there’s no way of ameliorating that risk, we would be concernedabout that course of action, from the perspective of wishing to protect P’s identity”.
Counsel for P (via the Official Solicitor) expressed concern about naming the defendant in a context where the committal proceedings had been brought for the protection of P, and naming the defendant risks undermining the protection (of her privacy) that has been put in place for the welfare and fact-finding proceedings. He hoped that there might be “a sensible and appropriate way to name [the defendant] without risking jigsaw identification of P”.
We were asked for our views as public observers at this point[10]and took the general position that it was important for open justice to be able to name the defendant. We were not asked to consider, and did not think to address, the question of whether the defendant’s “specific relationship” with the protected party should be concealed – and, in retrospect, that was a mistake. If the judge had raised this as a possible outcome, we would have explained that not only had the previous judgment made this relationship explicit, but also that the Open Justice Court of Protection Project blog posts had too. But we are not lawyers and not accustomed to being asked to make submissions in court, and were doing so ‘on the hoof’, without having had an opportunity to prepare. On previous occasions when we’ve made submissions in court, we’ve had the TO in front on us and have been able to point to particular wording as problematic – but there didn’t seem to be any concrete proposals (other than a total ban on naming the defendant) before the court. We had simply not appreciated at the time that naming the defendant but obfuscating her relationship with the protected party was a likely outcome. Our focus was instead on ensuring, as far as possible, that publishing the name of the defendant would not be prohibited.
Counsel for the Local Authority repeated again words to the effect that the principle of open justice weighs heavily here, despite a risk of jigsaw identification, and that it’s “important that there is continuity between the judgments”so that the case can be understood in the round.
The judge concluded by saying that she would not give a ruling on the transparency issues that evening and that the existing Transparency Order would remain in effect until she had made a decision about whether or not the name of the defendant could be published. She indicated that her decision would be communicated within five days or so.
In fact, the new TO was not issued until three weeks after the hearing – and we received it only after Amanda wrote to the judge enquiring about it.
We were shocked when we read the new TO – immediately realising that it severs the link between the 2024 fact-finding judgment and the 2025 committal judgment. The prohibition relating to the “specific relationship” between defendant and protected party (combined with the changed initials for the parties) ensures that nobody except the observers and those involved in the case can know that the two judgments refer to the same case. This is not open justice.
There may be circumstances under which it is necessary and proportionate to sever the continuity of two judgments in a case and to block transparent reporting. But we have not heard any arguments in this case to indicate that P’s Article 8 privacy rights (or her right to protection from harm) would be so desperately imperilled by reporting the “specific relationship” between her and her family member as to justify this draconian restriction on the public’s Article 10 right to freedom of information.
We will report back on the application to vary the 2025 Transparency Order in due course.
Amanda Hill is a PhD student at the School of Journalism, Media and Culture at Cardiff University. Her research focuses on the Court of Protection, exploring family experiences, media representations and social media activism. She is also a daughter of a P in a Court of Protection case and has been a Litigant in Person. She is on LinkedIn (here), and also on X as (@AmandaAPHill) and on Bluesky (@AmandaAPHill.bsky.social)
Claire Martin is a Consultant Clinical Psychologist, Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust, Older People’s Clinical Psychology Department, Gateshead. She is a member of the core team of the Open Justice Court of Protection Project and has published dozens of blog posts for the Project about hearings she’s observed (e.g. here and here). She is on X as @DocCMartin and on BlueSky as @doccmartin.bsky.social
[1] For convenience, we refer to the defendant, the protected party and the judge using feminine pronouns (she/her etc) and to all the barristers in court (representing the applicant LA, P via the Official Solicitor and the defendant) using masculine pronouns (he/his etc). Readers should not, however, draw any inferences as to the sex or gender identity of these persons.
[2] The two observers who wrote this blog post were Amanda and Claire. Celia Kitzinger was out of the country and without internet access at the time of this hearing, but as co-director of the Open Justice Court of Protection Project became involved on her return in trying to untangle the complex transparency issues involved in this case. She also took responsibility for submitting the COP 9 application to vary the 2025 Transparency Order. Thank you also to Daniel Clark for exhaustive experiments with different search terms in different search engines to determine how “likely” it was that naming the judge or giving the date of the committal hearing (for example) would lead to information about the “specific relationship” between the defendant and the protected party.
[3] In the unpublished judgment from this committal hearing, the judge says: “it was unfortunate that the court list did not show the defendant’s name but identified her by initials” (§15). This is incorrect: the initials that were published were not the initials of the defendant, but the initials of the protected party. The judge does not comment on the fact that the word “committal” was not used in the listing or on the failure to publish the name of the applicant public body in the list.
[4] Extract from an email sent by the judge’s clerk. (We’ve avoided giving the date and other details since to do so would increase the likelihood of readers becoming able to source information prohibited by the 2025 Transparency Order in this case.)
[5] See the Lord Chief Justice’s Practice Direction on committal for contempt of court and (especially) Esper v NHS NW London ICB[2023] EWCOP 29, in which Poole J offers a thorough review of the rules around contempt and transparency – including the interplay of different regulations.
[6] In the 2024 judgment, the defendant is referred to more than 30 times by reference to her “specific relationship” with P (e.g. “niece”) and the protected party is referred to more than 70 times by reference to her “specific relationship” with the defendant (e.g. “aunt”) – although, for the avoidance of doubt, we point out that this is illustrative only and that the reader should not draw from this example any inference as to the actual relationship of defendant and P. Our point is simply that the published judgment repeatedly invokes the “specific relationship” between the defendant and P in sentences such as: “She told her aunt…”….“She accepted that her aunt….” and “There was concern that her niece….”… “Her niece was observed by the social worker to….”).
[7] The judge said, in the course of the committal proceedings, that she “rather regrets” having included reference to the upcoming committal hearing in the fact-finding judgment.
[8] It would be possible to argue, in our defence, that, although naming the judge (for example) would make it easy in principle for people to identify the previous judgment in this case, and hence to identify the “specific relationship” between defendant and protected party, would anyone really bother? It would take less than 5 minutes to anyone familiar with the relevant legal archives, but the reality is (it could be argued) that very few readers of our blog posts will be sufficiently motivated to discover the “specific relationship” between the defendant and the protected party that they would enter the judge’s name into a National Archives search and open all her 2024 judgments to detect the one adumbrating an upcoming committal. People have other, more pressing, demands on their time! We don’t advance this argument for the following reasons: (1) it is a matter of principle that we should be able to link to published judgments, and this principle should not be predicated on an assumption that it’s unlikely that members of the public will click on these links; (2) in fact, in the last 12 months there have been more than 1,800 clicks on links from our blog posts to BAILLI, the National Archives, and the judicial website where judgments are published, so clearly some readers are accessing judgments from our blogs; (3) the 2025 Transparency Order is an injunction against us with a penal notice, and we don’t want to risk committal for contempt of court on the basis of an untested argument about how “likely” is it (or isn’t) that linking to a judgment will mean people (a) click on it, (b) read it, and (c) discover the “specific relationship” between the defendant and the protected party.
[9] The 2025 TO also refers to the protected party (and another family member) with different initials from the initials deployed in the 2024 judgment (which already represented a different set of initials from those used in listings for earlier hearings in the same case). This third set of initials makes it less likely that anyone casually stumbling over the fact-finding judgment will recognize it as relating to the committal judgment (which is public albeit not published) simply on the basis of the initials on the face of the judgment. The decision to create a third set of initials for the parties must be part of a deliberate strategy by the court to sever the connection between the committal and the previously published judgment. (The judge’s stated “regret” at having announced the upcoming committal hearing in her 2024 published judgment supports that interpretation.)
[10] Perhaps our position in the physical courtroom, sitting front and centre on the press bench focused attention on us. We’d asked to sit there in order to be able to hear better (and there weren’t any journalists in court competing for those seats). At one point earlier in the hearing, counsel for the Local Authority had looked over at us and said “The observers in court are responsible legal bloggers and part of the Open Justice Court of Protection Project and they won’t make it easier to identify (P)”. Another observer was watching the hearing via the video-platform, but was not asked for her views about the Transparency Order. It may also be relevant to point out that we’re not technically “legal bloggers”, as that term is used in the Family Court Transparency Pilot (Family Practice Rule 27.11). In the Family Court, “legal bloggers” is defined with reference to ‘duly authorised’ lawyers (see: Legal Blogging and the Open Reporting Provisions). We blog about legal matters and hearings we have observed but we aren’t lawyers. (The judge also refers to us as ‘legal bloggers’ in §15 of her unpublished 2025 committal judgment.) Finally, the 2025 Transparency Order has an opening recital “UPON hearing from…” which lists counsel for the applicant, counsel for the defendant and counsel for the first respondent, but (curiously) not us, despite the fact that the judge asked for our views and we provided them in court.
The person at the centre of this case, who I’ll refer to as J, is a man in his 30s with a diagnosis of schizoaffective disorder. On several occasions he has been detained in hospital pursuant to the Mental Health Act 1983, and he now resides in what sounded like a supported living type accommodation.
His counsel, Sophie Allan of King’s Chambers, explained in a very detailed opening summary that, his “presentation is quite complex but, in short, he does object to the circumstances of his residence, care, and support which constitutes a deprivation of liberty”. These proceedings (COP 20006720) are a challenge to that deprivation of liberty: “he wishes to reside more independently in the community”.
I observed this case on Thursday 3rd April 2025. It was heard before District Judge Weir who was sitting remotely (via Cloud Video Platform) at Sheffield Combined Court Centre. She stated at the start of the hearing that she was “content” for me to observe the hearing and, I hasten to add, that word was spoken warmly.
The judge also said that she was happy in principle for me to have position statements. I say “in principle” because there weren’t actually any position statements filed for this hearing. I was nevertheless grateful for her saying this. The judge could have ignored my request for them but acknowledging that I could have had them if there were any contributed to a welcoming atmosphere. In lieu of the position statements, she asked J’s counsel to give a more detailed than usual opening summary.
The respondent local authority, Sheffield City Council, was represented by Claire Farrell (unfortunately I’m not sure of her firm). The position of the local authority was that J should remain where he is for now while acknowledging that, with a combination of closer work with him and a change of medication, this position was open to change.
Counsel for the local authority didn’t actually have to say very much because J’s social worker, who was also on the link, made multiple contributions throughout the hearing. As the title of this blog states, the judge thanked her for her “enthusiasm and passion”.
In this short blog, that’s what I want to focus on. To my mind, this was very great praise indeed, and I think it deserves to be publicly known. The Transparency Order[i] prohibits me from identifying “care staff” and, while I don’t think that technically includes his social worker, there is a possibility it could. Even aside from this ambiguity, I have chosen not to identify this social worker because she may not want her name and place of work to be publicly available. Instead, I’ll refer to her as SW, which should be read as representing the words “Social Worker”, and which bears no resemblance to her actual initials.
The first time that SW spoke was during a discussion of how much debt (owed, I think, to the Department for Work and Pensions) J was currently paying off. Counsel for J wasn’t sure of the exact amount and, while she was looking for it, SW offered “an update on the financial situation”. I have to admit that I felt myself take a sharp intake of breath when this was offered. The last time I saw a social worker contribute to discussions unprompted was before District Judge Clarke, who sits at First Avenue House. On that occasion, it didn’t go well, and you can read about it here: A young man failed by NHS South West London ICB and the London Borough of Wandsworth
In the case that this blog concerns, SW was clearly knowledgeable – and was able to convey information that the court was happy to receive. She told the court that she had requested somebody, I think Citizens Advice Bureau, to have a close look at the amount of debt repayments being made because, “I think there’s something wrong”. Her passion was quite clear, and I got the strong impression that she had a wide knowledge of the benefits system.
SW also told the court that, “we want [J] to cook with staff…he really struggles to formally engage in any type of activity but he wants to cook”. It turned out that this had been on the judge’s mind, too.
The court heard that J has a good relationship with a support worker, with whom he enjoys cooking. He doesn’t like to use the ingredients provided by the place he lives, and shops for them himself. Ultimately, SW felt that more cooking would create a space to enable him to develop further skills for independent living. As she put it: “if [J] wants to do it, fantastic, let’s make it happen”.
The judge was very keen for this to happen, too. While J does not currently have a deputy for property and affairs (that issue will be before the court at the next hearing), the judge directed that he should be given £20 every fortnight in order to purchase ingredients for cooking. However, “if it goes well on a fortnightly basis [it’s possible J may stop wanting to cook], I’d like to see if it can happen more frequently”.
A little later in the hearing, the judge noted that J would like his own bathroom, which he currently does not have. SW told the court that, while she doesn’t know if there are any rooms with ensuite facilities, “I can check it out”. She then spoke about an element of J’s behaviour that she described as a way of “managing his mental health”, and which may complicate the search for another room. Not deterred, however, SW told the court she will talk to the placement about whether they have any suitable rooms “or if they have a room where [ensuite facilities] could be facilitated”.
The Open Justice Court of Protection Project has published multiple blogs about hearings in which the person at the centre of the case becomes lost amidst a sea of rules, procedures, and legal argument[ii]. It was therefore refreshing to see SW remain laser-focussed on J, using her wide-ranging knowledge, as well as some creative thinking, to identify how best to support him. It’s worth stressing that the judge also never lost sight of J.
Finally, as the discussion turned to timetabling another hearing, counsel for the local authority pointed out that SW is part-retired and is now only working a few days a week. In fact, the day of this hearing (a Thursday) was one of her non-working days, and she had given up some of that day off in order to attend court. Counsel was requesting that any future hearings are on a date where SW will be working. As the judge put it in response, this was, “another mark to your [SW’s] commitment”, and her clerk found a date and time (Monday 9th June at 11am) when SW would be working.
As the hearing came to a close, the thought at the forefront of my mind was that, in the event I need a social worker fighting my corner, I want it to be somebody like SW.
Daniel Clark is a member of the core team of the Open Justice Court of Protection Project. He is a PhD student in the Department of Politics & International Relations at the University of Sheffield. His research considers Iris Marion Young’s claim that older people are an oppressed social group. It is funded by WRoCAH. He is on LinkedIn, X @DanielClark132 and Bluesky @clarkdaniel.bsky.social.
[i]A Transparency Order will usually have effect ‘until further order’ or it will have effect ‘until the death of P’. It is not very common at all to see a Transparency Order that combines them both, as this one does. I think this approach to drafting Transparency Orders ought to be commended because it protects the privacy of J and his family while not creating open-ended, and difficult to challenge, reporting restrictions.
“This is one of the most clear-cut cases I’ve seen. You have provided support, community and love to somebody in the times they really needed it. I want to acknowledge, on behalf of this court, the job you have done and continue to do”. That’s what the judge said to Mrs G and her husband after approving a statutory will leaving them several tens of thousands of pounds. It was a lovely hearing to watch, because that seemed very much to be true!
Many people don’t know that it’s possible to apply to the Court of Protection (under s.18(1)(i) of the Mental Capacity Act 2005) for a will to be made on someone else’s behalf, once they’ve lost the mental capacity to do this for themselves. These are called “statutory wills”.
The court can authorise the making of a new will in someone’s best interests where that person (“P”) is still alive and has not made a will at all; or when they have made a purported will but it doesn’t meet the legal requirements for a valid will; or – as in the case I observed – where they’ve previously made a valid will but circumstances have changed significantly since they did so, and there is evidence that they would have wanted to change their will if they still had testamentary capacity.
In the hearing I watched (COP 14055281 before Tribunal Judge Reeder sitting at First Avenue House on 18thMarch 2025), the judge made a final determination about a statutory will for a 97-year-old woman (“P”) who has advanced dementia and is now quite frail – and may even be “end of life”. She was represented, via the Official Solicitor by Thomas Entwistle of 5 Stone Buildings.
Mrs G, who brought the application, is the sister of P’s late partner (represented by Antonida Kocharova of 3PB Barristers). She was not a beneficiary at all in P’s existing will. It had been made many years ago (I think I heard “in the 1980s”) and it seems P had not even known Mrs G, and certainly hadn’t anticipated the important role she would play in her life, at the time that will was made.
I don’t have as much detail as I would like – and am not fully confident of the facts – because the judge has so far declined to give the parties permission to release their Position Statements to me. He has also not yet released the approved order (to which I’m entitled under Civil Procedure Rule 5.9[1]). The judge tells me he intends to consider the matter on 1st April 2025 and I will update this blog post after that – if I gain access to the documents. My account of the facts is as accurate as I can make it under the circumstances.
My understanding is that Mrs G had originally made an application to the court asking for a declaration that it was in P’s best interests for her (Mrs G) to receive a life-time gift from P of £100,000. The rationale behind the gift was because (it seemed common ground among the represented parties) there had been a “mistake” in P’s partner’s will and “his intentions were frustrated”. He had intended his sister to have a legacy of £100,000 on his death – but he had failed to sever the joint tenancy on the family home he co-owned with P, which consequently passed to P by survivorship, leaving barely anything in his estate. It’s very likely that he discussed this legacy with P (they had mirror wills) and that she was in agreement with this legacy for Mrs G.
The application for a life-time gift to Mrs G was opposed by P’s daughter and P’s daughter’s husband on the grounds that P needed the money to pay for accommodation and care. Mrs G then applied instead to be a beneficiary of P’s will. This was also opposed by P’s daughter and P’s daughter’s husband on the grounds that there is “no evidence that P wished Mrs G or her husband to benefit from her estate”.
So, the matter had now moved to a contested hearing.
Unfortunately, the two unrepresented parties – P’s daughter and P’s daughter’s husband – had not joined the hearing (conducted over MS Teams). Nor had they filed reasons for their objections to the proposal agreed by the Official Solicitor and Mrs G about how to move forward – despite a direction so to do by a deadline of around a month earlier. The judge went to some trouble to establish that P’s daughter and the daughter’s husband had been made aware of today’s hearing before deciding that there was some urgency to the application due to P’s frailty. The cost of further protracting the case, and the delay and cost of another hearing, also played a part in his decision to go ahead with the hearing in the absence of these two parties. The case, he said, needed to be resolved “expeditiously” and “in a way that saves expense” (especially given that some of that expense is borne by P herself).
According to the excellent Dictionary of the Court of Protection[2], there is, in these cases, an overriding objective to resolve the matter as quickly as possible and with minimum expense to P, and the court expects the parties to adopt a co-operative approach to resolve issues. In practice, most statutory wills are agreed between the parties without the involvement of the court.
There had been an attempt to reach an agreement out of court. The Official Solicitor and Mrs G had decided that it would be fair (and pragmatically likely to reach agreement with the daughter) if the will were to say that Mrs G should get 35% of whatever remained in P’s estate when she died, and her daughter should get 65%. The funds were said to be “depleting quite quickly” with care costs and this would amount to “significantly less than £100,000” going to Mrs G. The daughter and her husband had not agreed, and had failed to comply with a court order setting out the reasons for their disagreement.
Counsel for Mrs G set out the reasons why the court should make the statutory will in the terms proposed: P’s former partner had intended to make provision for Mrs G; Mrs G and her husband are the only people who regularly visit P; and although P is not able to understand the issues and lacks capacity to make a will now, she would want – or would have wanted – to be seen to be doing the right thing by them.
The judge accepted the evidence that Mrs and Mr G had provided “comfort and assistance, community and family” to P since her husband’s death: “outside of those who are paid to care for her – which is not intended to be pejorative, they do a marvellous job! – the Gs have been there for her, and the common thread is their commitment to P – and to P’s husband when he was alive. It is entirely compelling that [P’s husband] during his life, and P now, would want to ensure provision for them”.
On screen I could see Mr and Mrs G looking overwhelmed with relief and quite emotional at this recognition of their role in P’s life. Both were wiping away tears and smiling.
The will was approved (with the 35%/65% split as proposed) and the judge turned to costs – imposing an adverse costs order against P’s daughter and her husband on the grounds they had not taken “a constructive approach”, had adopted a “a capricious position”, and that there had been “a conspicuous lack of helpful engagement” from them. Costs will be taken from P’s estate in the first instance with recovery of those costs from the daughter’s portion of the estate when P dies, so that Mrs G is not financially disadvantaged.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 600 hearings since May 2020 and written more than 100 blog posts.She is on LinkedIn (here), and also on X (@KitzingerCelia) and Bluesky @kitzingercelia.bsky.social)
[1] “Supply of documents to a non-party from court records. 5.9.—(1) Subject to rules 5.12 and 4.3(2), a person who is not a party to proceedings may inspect or obtain from the court records a copy of any judgment or order given or made in public.” (Civil Procedure Rule)
[2]Dictionary of the Court of Protection by HHJ Carolyn Hilder and others, 2025 edition, Class Legal
By Amanda Hill, with contribution from Tim Sugdenand Celia Kitzinger, 26th March 2025
The protected party in this case, “P”, is a woman in her early twenties, with diagnoses of autism, ADHD, behavioural difficulties and limited communication skills.
Her mother took her to Jamaica in February 2023 “seemingly to evade the involvement of social care professionals”, according to the Official Solicitor, representing P, as reported in an earlier blog about this case (Removing P to another country to evade the orders of the Court). I shall call P ‘Miranda’, the same as that blog.
Over two years later, in March 2025, Miranda is still missing.
There have been attempts to locate her, including via the involvement of the British High Commission in Kingston, the Foreign & Commonwealth Office, UK Border Force, the UK Police and British Airways. Nobody admits to knowing where she is – except for two family members, both believed to be with her: her mother, also a party to this case, and one of Miranda’s sisters. (Another of Miranda’s sisters remains in the UK.) Her father says that he has had no contact with his wife or with Miranda and the sister who is with her since the summer of 2023, and he does not know where they are. Emails bounce back and texts are unanswered.
Now the Local Authority, Essex County Council, has applied to conclude proceedings because, they argue “continuing proceedings would be futile and a disproportionate use of public funds”. The police would be notified if Miranda and her mother returned to the UK, because Essex Police are treating Miranda as a missing person.
In November 2024, there was a meeting between the Local Authority and Miranda’s legal representatives, and subsequent agreement to conclude proceedings. An application was made to the court dated 20th February 2025[1]. Counsel for the Local Authority also stated in his opening summary that P’s father supported the conclusion of proceedings.
A draft order was sent in the expectation that the decision would be made “on the papers” i.e. without a hearing. But this was refused by the court and a hearing in this case (COP 14027239) was listed for one hour at 10.30am on 19 March 2025, before Mr Justice McKendrick, sitting at the Royal Courts of Justice.
Two of us observed the hearing in the morning (myself and Tim Sugden) but the morning hearing was adjourned after an hour or so, until 3pm in the afternoon, and I wasn’t then available to observe it. Tim Sugden was able to do so and emailed a Hearing Feedback Form to the Open Justice Court of Protection Project which I’ve used, with his permission, to report on what happened in the afternoon.[2]. After the hearing, Celia Kitzinger requested and obtained the approved order (to which we’re entitled under Civil Procedure Rule 5.9 (“Supply of documents to a non-party from court records”, which reads: 5.9.—(1) Subject to rules 5.12 and 4.3(2), a person who is not a party to proceedings may inspect or obtain from the court records a copy of any judgment or order given or made in public.
The morning: Injunctions, penalties for contempt of court and next steps
In this remote hearing, conducted by MS Teams, the Local Authority was represented by Jim Hirschmann, Miranda’s father by Rose Harvey-Sullivan and Miranda by Keri Taylor (via the Official Solicitor). The father also attended the hearing and was on camera but he did not speak. The mother was not in court and the judge asked if she was aware of proceedings: that’s when it became obvious that nobody knew where she was or how to contact her.
The main deliberations of the morning were whether the judge would grant the application to conclude proceedings. It was clear to me from early on that he would not. Counsel for the LA made submissions in favour of concluding proceedings. During the submissions, the judge asked, to my mind, a key question: “Is it the LA’s position that it is in Miranda’s best interests to remain in Jamaica?” to which the LA replied that it was not, In the LA’s view, it is in Miranda’s best interests to return to the UK, to have a capacity assessment and for the public bodies to gather information to enable them to fill in gaps in the evidence. The judge then asked, “So, it is the LA position that Miranda should return?” – to which the answer was “yes”.
Counsel for Miranda’s father then submitted that he didn’t know where his wife and daughters were and he was unable to contact them. The judge asked counsel “what does he think Miranda’s best interests are?” to which the reply was that “he thinks that her mum will look after her…..he doesn’t agree with going against the court but he believes that Miranda is safe and cared for by her mum.”
In response to this, the judge stated that someone (meaning, the mother) has decided that Miranda should have no contact with her father and “this causes me concern”. Counsel for the father replied that it was “unusual” and the judge retorted “that’s an understatement”.
The judge wanted more information about emails and text messages that Miranda’s father had sent to his wife. This is when I started to get the impression that the judge thought the father knew more than he was letting on about where Miranda was. He asked for information about the house the father was living in and the split of ownership with his wife. The reason for these questions became apparent later on.
Counsel for Miranda via the OS submitted that the OS was in an “invidious position”. She had been appointed as Miranda’s Litigation Friend in December 2022 but had never been able to meet her. She referred to “closed material”[3] relating to Miranda’s return but “that horse has bolted”. It seems that documents had been served but the father’s counsel had been alerted despite the intention to exclude him from knowing about this. The OS was “neutral” as to whether the case should be concluded, but mainly because she couldn’t advance a positive case.
Counsel for the Official Solicitor did suggest further enquiries that could be made, including whether P had in fact returned to the UK unbeknown to the authorities. These included seeking information about whether Miranda’s mother was claiming benefits in the UK, whether she had a bank account, whether Miranda was registered with a GP, and whether estate agents had been contacted about the sale of the house Miranda’s father was living in (which he co-owned with his wife). The position statement also suggested that Miranda’s father could be directed to “file further evidence” about what he knows about their whereabouts.
The judge then set out his decision. He stated that he had only received the bundle of 700 pages at 7.30am that morning and a one-hour hearing was not enough to go through all the evidence. He raised potential safeguarding issues. Back in 2022, Miranda was found to have bruises on her body and as she is non-verbal she could not explain how she had come to have them. The judge described the family as “not co-operative” and her mother had taken her to Jamaica before an assessment as to her capacity to make decisions could be carried out.
Mr Justice McKendrick continued by saying that Miranda was a British citizen and “remains extremely vulnerable”. He was satisfied that the court retained jurisdiction. He found it “curious” that Miranda’s own Litigation Friend “does not know where she is or what steps have been taken to locate her”. He said: “I have little information regarding the up-to-date circumstances of Miranda”, including access to health care and medication and where she is living. He found that it was “inconsistent” with Miranda’s best interests to conclude the hearing today.
He directed that Miranda’s father must file a “very detailed” witness statement about the removal in January 2023 of Miranda from the court’s jurisdiction and what has happened since. He ordered that the witness statement must include a chronology of contact with Miranda’s mother, including emails and texts sent. He directed Essex County Council to make urgent further enquiries to try to locate Miranda. He would not close the proceedings when there were “clear avenues to pursue”.
Contempt of Court
Another judge at a previous hearing in this case on 15th September 2023, Mr Justice Williams, had issued an order saying that Miranda’s mother must return Miranda to the family home. He attached a penal notice meaning that if Miranda’s mother disobeys, and is found as a result to be in contempt of court, she could be imprisoned, fined, or have her assets seized.
One issue for the judge at this hearing was to establish what has happened in relation to this (and other) orders already issued in the case so far. He wants to try to establish if Miranda’s mother has been served with the order of Mr Justice Williams – and if so, and if she is in contempt of court, one possible penalty is a sequestration order against the 50% share of the property that she co-owns with Miranda’s father (the house he’s currently living in, worth several hundred thousand pounds). If the mother is found to be in contempt of court, she could lose her share of the property she owns. He stated that it is open to the court not only to send her to prison, but also that her assets could be sequestered. He said he was “not making a threat” but it was his “obligation” to point out the possible consequences of non-compliance with court orders.[4]
The judge’s view was that if Miranda’s mother was aware of the court proceedings, she should also be made aware that there were “repercussions” of not complying with judicial orders emanating from them. He was not going to say there would necessarily be an order for her to return Miranda to the UK, but the court wants to know where Miranda is and how she is living.
Next steps
The judge listed an in-person hearing at 12pm, Friday 28th March. He stated that Miranda’s father “must” attend in person as the judge may need to hear evidence from him. He asked Miranda’s father to take steps to contact Miranda’s mother because “I want [Miranda’s mother] to know that the OS must have communication with Miranda”. He wants all the parties to take steps to locate her.
The afternoon: Important transparency issues
After just about an hour, Mr Justice McKendrick adjourned the hearing until 3pm so that a draft order could be drawn up. Tim Sugden reported back on what happened when the hearing reconvened:
“When [the hearing] resumed, counsel for the applicant ran through the draft order that had been drawn up in the break, and the judge added / rephrased some sections in terms of what he expects the parties to do / write before then. That includes full details of whether (and if so, exactly how) the previous Return Orders were served on P’s mother; and the views of all parties as to whether (1) a further Return Order should be issued; (2) whether P’s mother is in contempt; and (3) whether the court has “continuing jurisdiction” in the matter, i.e. has P, by virtue of presumably residing in Jamaica for two years, become “habitually resident” there?
Then OS counsel requested that the hearing become a private one from which observers would be excluded, to discuss a particularly sensitive matter that “lay outside the terms of the TO” and which the other counsel were all aware of. The judge asked for submissions on this request – but I’m afraid I was a bit flummoxed at this sudden turn of events and didn’t know quite what to say in response, and so he went ahead and asked me (the only observer still standing by that stage, as it were) to leave, which I did. I was told that if the ‘public’ hearing resumed after the ‘private’ bit, the court staff would let me know so I could rejoin, so I hung around for a while … but heard nothing further after a half-hour or so, so disconnected and went off to do other things!”
I really don’t understand what happened here. In my opinion, if the Transparency Order was not drafted in a way to protect Miranda’s privacy, due to these “sensitive issues”, then it should have been changed. Neither Tim nor I were issued with a TO before the hearing started.
When the hearing started, there seemed to be some confusion about whether there even was a TO. But one was then located in the court “bundle” and emailed to both of us during the hearing. It was the sealed TO made by HHJ Hodges sitting in Chelmsford Justice Centre on 11th January 2023, and it’s in the standard form. The “Information” we are prohibited from reporting is set out in §6:
Tim and I are both experienced observers. We know that we could be found in contempt of court if we report matters which we are forbidden to do by the TO and we both have experience of the court going out of its way to permit us to observe hearings about sensitive matters by drawing up careful reporting restrictions to protect Miranda’s privacy and any risks of harm.[5]
In my opinion, if there are sensitive matters which should not be reported, then they should be considered in advance and the TO changed accordingly. It should not automatically mean a hearing is made private. That is not open justice. Also, Tim, like me, is not a lawyer. We are just ordinary members of the public. It is very hard for us to make “submissions”. I think this should be recognised by the court. I now know that I should be prepared more for this, for example to ask that public bodies be allowed to be named. But like Tim, I would have been “flummoxed” if I had been there too.
I don’t know whether the hearing on 28th March 2025 will be in public or not – or whether a video link for observers will be available if it is heard in public. I hope so, as I would like to observe to see what happens and be able to report on it.
Mr Justice McKendrick was clearly frustrated that more had not been done since 2023 to locate Miranda. I wonder if things will change before the next hearing.
The approved Order by Celia Kitzinger
The approved order (dated 19th March 2025) says that the mother “must attend the next hearing at 12pm on 28th March 2025” before McKendrick J (either remotely or in person) and that if she doesn’t, she may be held in contempt of court and may be imprisoned, fined, or have her assets seized.
The father, must also attend the next hearing, in person, and must serve in advance a signed witness statement providing a clear chronology of his contact with his wife – including texts, WhatsApp messages, social media, emails, written correspondence, and phone calls, and any contact details he has used, and details of any means he believes the other parties could use to contact her. He must also provide information about the ownership of the property he jointly owns with his wife (and the equity in it) and his belief as to where his daughter is currently living.
Essex County Council must also serve a witness statement setting out its belief as to where P is living, why it is in her best interests to return to the UK, and the steps it has taken to ensure that the mother has received (in such a form as to “effect service” upon her) the previous injunctive orders, the order concerning today’s hearing and the approved order resulting from it. The parties are also asked to agree a note in respect of the law relating to (i) the legal test for withdrawal of proceedings and (ii) the Court of Protection’s jurisdiction when there has been a wrongful removal of P from the jurisdiction.
The order does not record that part of today’s hearing was held in private and that a public observer had been excluded by the court. A note on the face of the order simply records “THESE PROCEEDINGS ARE IN PUBLIC BUT SUBJECT TO A TRANSPARENCY ORDER…” (capitals in original) and one of the recitals records that the parties had been given “… permission to share their position statements with observers who attended this public hearing”. This implies the whole hearing was public – but according to Tim Sugden it wasn’t. This does not seem accurate, and I’ve asked for information to whether or not there is a separate order relating to the private part of the hearing. There is no indication in the order that the next hearing will be other than public in its entirety.
Amanda Hill is a PhD student at the School of Journalism, Media and Culture at Cardiff University. Her research focuses on the Court of Protection, exploring family experiences, media representations and social media activism. She is also a daughter of a P in a Court of Protection case and has been a Litigant in Person. She is on LinkedIn (here), and also on X as (@AmandaAPHill) and on Bluesky (@AmandaAPHill.bsky.social)
Tim Sugden retired in 2022, after a career in children’s services, to devote his time to providing accommodation and support to refugees from Ukraine.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 600 hearings since May 2020 and written more than 100 blog posts.She is on LinkedIn (here), and also on X (@KitzingerCelia) and Bluesky @kitzingercelia.bsky.social)
This blog was edited on 31st March 2025 to correctly state that the meeting in November 2024 was between the LA and P’s representatives. It was further edited on 24th July 2025 to comply with (retrospectively) with a transparency order varying the initials to be used in reference to P and her parents.
Footnotes
[1] This information is taken from the Local Authority’s position statement. I asked the judge to grant permission to counsel to share their position statements with me, which he did after the hearing, and all three counsel shared them with me. I am grateful to both the judge and counsel for responding positively and quickly to my request.
[2] We encourage other observers, especially those who don’t want to write blogs, to complete these Hearing Observation questions too – they are massively helpful to us, as this blog post demonstrates. You can find the form on our “Observer Resources page.
[4] We have blogged about many different contempt of court hearings, including: “A committal hearing to send P’s mother to prison”; “Committal hearing struck out and dismissed for procedural defects”. It’s relatively rare for financial penalties to be imposed on people found to be in contempt of court: a recent example is the unpublished judgment in Norfolk County Council v Caroline Grady [2025] in which Arbuthnot J imposed a fine. We hope to be able to blog about this shortly.
[5] For example, I am bound by a very detailed TO forbidding the reporting of certain information about the protected party in another hearing I observed, (The patient with no friends or family: A challenge for best interests assessment) and Tim observed and participated in a hearing wholly devoted to working out reporting restrictions such as to permit public observation or and reporting on a case before HHJ Hilder, which also involves a committal hearing (ongoing – blog to follow).
I first came across this case on 9th October 2024 when I was looking for a hearing to observe. As frequently happens in the Court of Protection, the first one I found had been vacated (meaning it was no longer going to take place), so I’d requested a link for a second, and when this was also vacated, I started to feel the familiar tug between the desire to make use of the afternoon I had set aside to observe a hearing and the recognition that I was likely to be adding to the workloads of already overstretched court staff with repeated emails requesting links. I would quite possibly have given up, had not a particularly helpful court clerk in the Judicial Support and Listings Team at First Avenue House let me know that there was another that would be going ahead. That turned out to be COP 14155095 HMB – and this blog post covers two hearings: one on 9th October 2024 and another on 4thFebruary 2025.
First Hearing: 9th October 2024
I received later that day a link to the hearing and a copy of the relevant Transparency Order and was able to sign in and be admitted to the virtual waiting room shortly before 2pm when the hearing was due to begin. Counsel for the Official Solicitor representing the ‘protected party’ (referred to for the purposes of this case as ‘HMB’) – Scott Storey – and the barrister representing the Local Authority (the London Borough of Bromley) – Kristina Hopper – were also in the waiting room, along with HMB’s mum and social worker.
The hearing began with the judge (District Judge Batten) entering the courtroom at 2:11pm. She began by noting the presence of three observers – two online and one in the courtroom – and asking if there were any questions concerning the Transparency Order to which the proceedings were subject (there were none). She then asked Counsel for the Applicant (Scott Storey) to provide a brief summary of the background of the case so far.
I learned from this that HMB is a woman in her early thirties living in the South-East of England. She has a diagnosis of learning disability and is said to be probably autistic. She also has diagnoses of “possible psychotic disorder” and anxiety disorder (i.e. agoraphobia/panic attacks)[1]. When she becomes anxious, she is said to “display some challenging behaviours”. HMB communicates verbally and “is able to make her views, wishes, and aspirations known with staff on simple matters” – e.g., choosing what to eat or wear and letting staff know if she is feeling unwell, although she is said to require “support with all her daily living activities”.
The case before the court is an objection by representatives of HMB to a Standard Authorisation under the Deprivation of Liberty Safeguards (DoLS) – commonly known as a ‘s.21a challenge as it is brought under s.21a of the MCA 2005. This seems to be the culmination of a series of breakdowns in care and accommodation, which have involved HMB being moved repeatedly in a period of only a few years following a 5-month hospital stay that itself resulted from a “nervous breakdown” following a change in accommodation in late 2022. The ‘placement’[2] to which she was discharged from hospital in March 2023 broke down after only a few days as several incidents led to the home manager noting that HMB was at this time “a high risk to herself, other service users, staff, and members of the community”. A month’s notice was served in April 2023, but in what may have been a foreshadowing of challenges to come, the deadline for HMB to move out was extended by a further month “for an alternative placement to be sourced”. She then moved to her current home in July 2023.
The case is concerned with two tasks, specifically: (1) to identify appropriate accommodation and care package for HMB, and (2) relatedly – to ensure access to appropriate “care and therapeutic support” so she “doesn’t suffer” (as the judge phrased it) in her mental health and quality of life, while (1) is ongoing. The court heard evidence of ‘suffering’ in a “rough” attendance note following a visit to HMB on 3rd October 2024 by the solicitor representing her (Claire Langford). The note described HMB’s “presentation” during the visit as “not ideal” and indicated that “limited discussion” had taken place. During this discussion, HMB indicated that she is unhappy and bored, and that she wants to move – information that was received gratefully by the judge who affirmed the importance of hearing HMB’s views, “however rough” the form might be.
Progress in identifying alternative provision for HMB has been far from ideal. Investigations prior to the hearing on 9th October 2024 had included a report by an independent social worker suggesting options of residential or supported living services, or an individual flat with a package of bespoke care. A key priority was identified as being geographical location so that HMB could be near her mum. However, when the judge came to enquire as to what progress had been made in locating an appropriate housing and care, she was demonstrably less than pleased – pointing out that the case is now one year on from initial application and asking, “Why does it take so long?”. She made an Order that before the next hearing, the Director of Adult Social Care should file a witness statement outlining what care and home have been identified; and if this has not been achieved, explaining why not.
Reasons were given for these delays, which seemed to fall into two categories: 1) Counsel for the Local Authority pointed to a lack of appropriate results from the “extensive placement searches” carried out by the Local Authority placement team – who were “on it”, but unfortunately “not much has returned”; and 2) Arising from probative questioning by the judge, a lack of clarity among the parties about what sort of placement or location is in HMB’s best interests.
The judge also heard from HMB’s mum, who pointed to the impact on her daughter of the current situation. She said that she sees the judge “making things happen” (via directions) but that HMB “is the one missing out”. Her daughter used to want to go out of her home but now finds it too overwhelming and “overthinks”. HMB’s mum explained that her daughter “needs people to keep trying” when she refuses to leave the home due to anxiety, rather than simply giving up after the first failed attempt.
Second Hearing: 4th February 2025
At the second hearing, there was new counsel for each party: HMB was represented by Stephen Williams (via the Official Solicitor), with Nikita Pierpoint appearing for the ICB (which had been joined as a party following the previous hearing). I was unsure about representation for the Local Authority as Zoren Nettey (an in-house solicitor) was present via remote link, but I couldn’t identify any barrister acting for the Local Authority, and the judge and Nettey interacted at various points during the hearing.
There is still no ‘placement’ identified for HMB, and her mum reports concerns about further impact of the delay and inappropriate home and support on her mental health and levels of anxiety. Williams was able to provide an “update of sorts” – as apparently HMB’s mum has been in contact with a potential new placement, which she has visited. The manager is “on Annual Leave until next week” but then an assessment can begin as to HMB’s suitability for the place.
The judge was very critical of various failures to comply with Orders made at the previous hearing. It transpired that the Director of Adult Social Care had failed to provide a witness statement in compliance with the Order made on 9th October. In response to an attempt to account for this by Nettey, she responded, “That the Director of Adult Social Care is new in-post is not my concern” and “I’m making these Orders not for my own amusement but for P” – adding that any further such Orders “may have a penal notice attached”. And in response to the failure (again) of parties to hold a Round Table Meeting prior to the hearing, she exclaimed, “I’m completely at a loss to understand why a group of professional people can’t agree a date for a [meeting]”.
The ICB was also a focus of the court’s displeasure. They had been joined as a party at the previous hearing though it was clear they were dissatisfied with this and had initially asked to be discharged, with their Counsel subsequently indicating that they were “led by [other] professionals” and viewed the Local Authority as the “lead authority”. The judge admonished them, saying she expected them to be playing a “key role” rather than a “remote – ‘I’ll send you a list’ – role”. She ordered them to attend the next hearing in person.
In conclusion, an Order was made retaining the ICB as a party (with the caveat that after the next hearing they were not required to attend if there was nothing specific for them to do). The 12 months of the DoLS Standard Authorisation was confirmed as still having time to run. The court wants to see improvement in record keeping regarding HMB’s daily care and activities and the manager is to liaise with the social worker to ensure this. The inadequate explanation for lack of input by the Director of Adult Social Care was noted, with the judge emphasising that hearing from them was “urgent”. A detailed witness statement was ordered to be filed by 28th February, with HMB’s mum being permitted to file a statement in response by 7th March if she wishes. The judge also hoped that HMB’s solicitor could visit her and file a note by 7th March as HMB’s views are “crucial at this point”. A Round Table Meeting must take place during the week commencing 14th March with a date to be agreed immediately after this hearing, and “the court will not be impressed if you fail”. A further hearing will take place as soon as possible after 24th March 2025 with the court clerk notifying the parties of the date. This will be a hybrid hearing with all parties except HMB’s mum being required to attend court in-person.
Reflection
As with any member of the public who observes COP proceedings, I bring to my understanding and interpretation of any hearing relevant aspects of my own experience and identity – notably as a disabled activist with complex health needs who receives social care. In this case, the seemingly glacial slow speed of progress in identifying appropriate accommodation and care for HMB – and the related apparent lack of such resources seemed to mirror my own experiences of delayed assessments followed by lack of available services to meet assessed needs. Similarly, I have experienced the collapse of care packages as providers “couldn’t meet my needs” causing me to empathise with the reported circumstances preceding HMB’s admission to hospital. It can feel as though a care package is both the elusive pot of gold at the end of the rainbow and a house of cards just waiting to fall down at the slightest breath of wind.
What else stood out to me was how a significant part of each hearing was taken up with the judge asking probing questions to establish what each party believed was being worked towards for HMB – often revealing misunderstandings or lack of certainty among the parties and their legal representatives. It seemed as though what was going on between hearings was a game of ‘Telephone’ in which objectives became distorted over time and when passed between parties and colleagues. And the failure of “professional people” to organise a pre-hearing Round Table Meeting that so exasperated District Judge Batten seems to have exacerbated further the need to use court time for this case management function.
As someone who must also rely on such “professional people”, it was difficult to watch this play out in court. Those of us for whom health and social care services mediate access to the fundamental safety, dignity, and quality of life that many people take for granted need those professionals to work and communicate effectively, because there is so much resting on it for us. Such professionals have accepted a role in which they take on the responsibility that comes with the trust we place in them. We have no choice but to place our faith in others to facilitate fundamental aspects of our personal and social wellbeing – and that is hard enough – but to see the efforts of those individuals and organisations in whom we must place our faith falling short with such alarming regularity can be galling.
While I noted several aspects of ‘overlap’ or resonance between my own and HMB’s circumstances, observing these two hearings also prompted me to reflect on a key difference between her situation and mine – i.e., the involvement of the Court of Protection. The COP is constituted through the MCA 2005 as the arbiter of disputes regarding mental capacity and best interests, but what I saw in these two hearings led me to consider further facets of the court’s role in terms of case management and ‘advocacy’.
There were several examples across the two hearings of the court managing the ‘case’ – which importantly means not only the legal case before the court, but the health and social care circumstances out of which this legal case has developed. The use of Court Orders to compel a Director of Adult Social Care to account for a lack of progress via a witness statement (from which the title of this post is taken) was particularly powerful given the threat of a penal notice attached to future Orders in the event of (further) non-compliance. This, of course, highlights a key aspect of what makes the COP’s involvement unique – it comes with the power to hold those who fail to do what it has ordered them to do (by the deadline it has set) in Contempt of Court. I have had (and continue to face) many situations in which those involved in my care have attempted to compel “professional people” and public bodies to do what they should be doing to secure my care package but have failed to deliver. But no one advocating for me in this way has ever had the authority to promise a penal notice in the event of future non-compliance. This seems to be a distinction that differentiates health and social care cases that become ‘welfare cases’ before the COP from those that don’t.
This, in turn, points to another feature of the court’s function that I observed in these hearings: i.e., how it goes about advocating for P’s ‘best interests’ alongside determining what these should be. As well as emphasising the importance of hearing P’s views (via her solicitor’s attendance notes), the judge was repeatedly explicit about her concerns for HMB’s “quality of life” and access to therapeutic input while the search for appropriate accommodation and care is ongoing. As I’ve indicated, the judge also expressed surprise, frustration, and exasperation throughout at the lack of progress and failure of “professional people” to comply with Court Orders and to make progress in identifying appropriate accommodation and care for HMB. It may be said that no amount of angry discourse directed at public bodies during COP proceedings is of itself going to make a material difference to P’s circumstances – in HMB’s case, she still lacks the accommodation and care deemed to be in her best interests. But as I observed these hearings, I reflected on the times when I have been let down by health or social care professionals who have failed to do what they promised. In my experience of such situations, it isn’t only the material circumstances that have a deleterious impact on one’s wellbeing – it is the feelings of powerlessness, invisibility, and ‘voicelessness’ that come with such circumstances. Although the COP may not be able to compel a public body to provide facilities or services to meet the needs of a disabled person (see further: the Supreme Court case of N v ACCG & Ors [2017] UKSC 22), I observed the judge’s surprise and exasperation at the lack of progress in HMB’s case as performing a function of delegitimising and ‘calling out’ the situation. When one finds oneself repeatedly let down by those on whom one is forced to rely, it can begin to feel as though this is all one is entitled to expect – as though such experiences are to be deemed socially acceptable. While discussing my experiences with others leads me to suspect that the majority of society is simply unaware of how health and social care bureaucracy works (or doesn’t work), it can feel as though in failing to exhibit surprise or disapproval at failures of care, society legitimises the situation. Hearing such disapproval from someone exercising the authority of the court (in open court) felt like a powerful counter to such tacit social legitimisation that I wish more of society could (or would) hear.
Observing these two hearings caused me to feel empathy and deep anger that HMB is being failed by the bodies (and ultimately the State) in whom she, and those who care about her, should be able to place their trust. But I also had cause to reflect on the ‘advocacy’ potential to be found in the role of the COP in ‘welfare cases’ – and how this potential might be harnessed further in the pursuit of social justice for disabled people. Of course, I think the fact that this role is exercised in public is fundamental to its impact, and the first step is for more disabled people, and our allies and advocates, to observe COP hearings – to bear witness when the court exercises such ‘advocacy’ and to seize its momentum for social change.
Gill Loomes-Quinn is co-director (with Celia Kitzinger) of the Open Justice Court of Protection Project. She can be found on Twitter and Bluesky @GillLoomesQuinn and on LinkedIn here.
[1] In drafting this post, I have drawn on position statements in addition to my own notes from the two hearings I have observed in this case. Given the general prohibition of recording of court proceedings, any quotes included from my observations are as accurate as possible but should not be assumed to be verbatim.
[2] I noted that the term ‘placement’ was used throughout both of the hearings I observed in this case (and in the relevant position statements) to denote accommodation either assigned to or sought for HMB. I know that of course the use of such vocabulary is ubiquitous in professional discourses concerning disabled people – particularly those with learning disabilities. And some may seek to justify its use (as opposed to more ‘everyday’ terms – e.g., “home”) to indicate the ‘specialist’ nature of such accommodation. However, this brought to mind for me the ‘othering’ that is central to how disabled people and our life experiences are typically portrayed in and perceived by wider society. I had cause to wonder if/how reference to the search for a “home” for HMB (with the attendant connotations of privacy, safety, security, comfort, and family – as well as familiarity for professionals themselves), rather than a “placement” (with implications of non-domestic clinical sterility, and almost certainly distinct from the domestic arrangements of the legal, health, and social care professionals involved) may have made a difference to the case, or professional attitudes to it – both inside and outside of the courtroom. For some more examples of the harmful language used by professionals in relation to the lives of disabled people, check out this short video by Rightful Lives.
I was excited to be travelling to London to observe an in-person hearing at the Royal Courts of Justice (RCJ) as part of my research with Cardiff University.
This would be my third time observing in person at the RCJ and I was beginning to feel as though I knew what I was doing and how things worked. The evening before, when the listings were published, I’d identified an 11.30am hearing (COP 14070782 on 8 October 2024) before Mr Justice MacDonald in Court 39, which I knew was in the Queen’s Building, the newer construction behind the Gothic splendour of the old building that always appears in photographs of the RCJ.
I arrived in good time at 9.50am. It was just as well, because I ended up queueing behind a school party going through security just ahead of me. The security staff didn’t seem as ‘fierce’ as they had done the day before when I was there, and were waving people through saying “Morning” and “Have a good day” as they checked them in.
I double-checked the Daily Cause List printed out and pinned up in the glass cabinets in the middle of the impressive Grand Hall. I could see that the listing for the hearing I wanted to observe was still the same – it was in fact the printed internet page from the evening before, timed at 19.01:
I approached the enquiries desk and said that I wanted to observe the hearing in Court 39. Straight away, the member of staff helpfully gave me the map to show me where the courtroom was. There was no suggestion that it would be in private or that it wouldn’t be happening as listed.
After a leisurely coffee in the on-site café, taking in my surroundings, I walked over to the Queen’s Building.
At around 11am, there were a few people around. I looked at the Daily Cause List in front of the court room door to triple-check the hearing was going ahead in that room, but the only list on display was for hearings before Mr Justice Poole from the week before.
The lights were on in Court 39 and I could see somebody tapping away on a computer in front of the judge’s bench, so I assumed that that was the judge’s clerk. I could also see one man in a consultation room next to Court 39, with the door open. My plan was to wait and see what happened around 11.30 (when the hearing was due to start), and follow other people into the courtroom when people started to move in. There also were a couple of people just in front of the court room who I assumed were waiting for the same hearing that I wanted to observe – but they left shortly afterwards so obviously not – and as time went on there were fewer people in the lobby area in front of the court rooms.
I sat and waited.
When 11.30 came and went I assumed that the previous hearing before the same judge was running late. The list told me that there was a 10.30 “urgent” hearing (not a Court of Protection one) by MS teams. It’s not unusual for hearings to run over their allotted hour and for subsequent hearings to begin late, so I just kept an eye on what was going on inside the court room. There were no signs of an in-person hearing going ahead.
At 11.38 I checked the listing using my phone to see if the listing had changed but it hadn’t. The 11.30am hearing was still there and it still said it would be heard in open court in Court 39.
Nobody went into courtroom 39 and nobody came out of the courtroom to say what was happening with the hearing.
At 11.43 I saw the judge in there, along with the staff member. The judge was sitting at the bench looking at his computer.
By 11.46 the judge had gone ,but the staff member was still at her computer. I felt very uncertain as to what I should do. I kept looking through the glass panel window on the door. Should I go in and ask what the situation was? But I was worried that the urgent hearing from 10.30am (a private family one) might still be going on, and that the staff member would be involved with that.
At 11.50 the judge sat back down at the bench but again did not stay long.
At 12pm I decided to email the RCJ staff to tell them I was waiting to observe the Court of Protection hearing in person and asking what the situation was:
By 12.10 there was still no news or signs of movement. Nobody was around apart from the people in the consultation room nearby behind the (now) closed door. I was feeling very frustrated and a bit stupid. I wondered again whether I should go into the courtroom and ask the staff member at the desk what was happening. I knew the hearing was not likely to continue past 1pm (when the court usually breaks for lunch) and time was ticking on.
By 12.19 I hadn’t had a reply to my email, so I rang the RCJ number published on the Open Justice Court of Protection “Featured Hearings” page. The phone was answered quite quickly and I spoke to a staff member and gave her the hearing details. She checked and said ‘they should be in court’. I told her that I was sitting in front of the court room and that I couldn’t see anyone in the court apart from a member of staff sitting at her computer. She put me on hold for a few minutes and then she came back, apologizing for keeping me waiting. She said that she had contacted the court associate who had told her that the hearing had been held remotely by MS Teams that morning. I’d spent 7 minutes on the call:
So, I had missed the hearing
Having gone specifically to London to watch COP hearings, spending the whole morning at the RCJ and having sat outside the court room for an hour, I couldn’t believe it that this had happened. I felt so foolish: it was such a waste of my time and a missed opportunity for open justice.
At 12.30 I left the building without having watched a hearing, feeling very dispirited about the whole experience.
What could have been done to support transparency?
As co-director of the Open Justice Court of Protection Project, Celia Kitzinger wrote to the court afterwards to find out what had gone wrong and received the following reply:
Note: I did not (as the email says) “attend the public counter” about my concern – I’d phoned; and I think on the account given, a hearing did take place briefly to approve the agreed order (agreed orders are often approved “on the papers” and the hearing is vacated but that doesn’t seem to have been the case here). But these are issues in passing, and not the key point.
A number of things could have been done in this situation.
The online listing could have been corrected promptly, but only if someone – the judge or judge’s clerk – had checked the list, seen it was wrong, and told the listing team that it was wrong and asked them to correct it.
The paper daily cause list outside the courtroom could have been updated. By coincidence, I had booked a tour of the RCJ that same afternoon and the guide said that the printed paper notices (at least outside other courtrooms) were frequently annotated in pen so that the public were kept up-to-date. This would have required the court staff to look at the list and realise that it was wrong – which they would have known, obviously, since they were managing a remote hearing and the list said it was an in-person hearing – so court staff were in a position to do this.
A member of staff could have checked the corridor outside the court to see if anyone was waiting to observe as a consequence of the case having been wrongly listed and invited me into the courtroom, notwithstanding the fact that it was now a remote hearing (and a very brief one). This is what happened in another case we’ve blogged about: a hearing was changed from being in-person to remote and an observer who had travelled to observe the hearing in person was invited into the courtroom to observe the judge conducting the remote hearing (see Observing a remote hearing in court with the judge). In that case, it seems that the hearing had also been wrongly listed as “public” when in fact it had been intended to hear it in private. Displaying a firm commitment to transparency, the judge (HHJ Hilder) said: “Since Professor Kitzinger has taken the trouble to come to court,I made a Transparency Order and we are sitting in public” – and, “just to clarify,” she added (addressing the observer) “you would have been welcome to attend if it had been a private hearing”.
Transparency is in peril when it’s made so challenging for would-be observers to access court hearings. If errors and last-minute changes are inevitable (and perhaps some are), then at least steps should be taken to facilitate observers, either by provision of remote links to in-person hearings, or by admitting observers to otherwise empty courtrooms where judges are conducting remote hearings.
The judiciary, lawyers and HMCTS staff need to work together to avoid errors and to improve procedures to ensure that we’re not excluded and left feeling so dispirited and disempowered about open justice.
What was the hearing about?
The point of my going along to the Royal Courts of Justice that day was to observe justice being done, in person, and report back to the public on what I saw. I can’t report on the process, but I do know a bit about what happened because I asked the judge for the approved order from the hearing and eventually (two months later) received it. This means I can provide an update on what’s been happening in this case.
Another observer (Celia Kitzinger[1]) had watched – but not blogged about – a remote hearing in this same case back on 10th July 2023, also in the Royal Courts of Justice, but before a different judge (Mr Dias KC).
At that point (July 2023), the protected person, LO – described as “a 17-year-oldwith significant impairments” – needed psychological support but there were difficulties in obtaining this and the parents’ lawyer (Ben McCormack) sounded very frustrated: “Why are we sitting here time and time again to ask for directions: the psychologist left employment and it’s taken us six months to find another psychologist and get the authorities to agree to pay for one!”. He said – rehearsing a familiar refrain in the Court of Protection – “this litigation is characterised by agreement, but also by delay”.
The parents were also trying to get the authorities to plan ahead for when LO turned 18 in the course of the coming year, at which point he would transfer to adult services. Would LO qualify for Continuing Health Care? Where would LO live?
Counsel for LO’s parents said: “The agreement is that LO will live at [X Placement] in [City] and it’s likely everyone agrees he should live there after he turns 18 – but it is absolutely mission-critical that [X Placement] starts that intensive hefty process to become registered with CQC”.
So, what’s happened with the “mission-critical” CQC registration?
The approved order from the hearing I failed to observe (so three months later) says that LO’s support provider “remains unregistered with OFSTED” and that LO’s placement has “informed [the local authority] that they will not be pursuing CQC registration” and it “is therefore also unregistered with the CQC”. The landlord has also served notice. The public bodies[2] were looking for a new place for LO to live long-term.[3] This situation has serious implications for LO (and his family) and is a legitimate matter of public interest. This is exactly the kind of thing we need to be reporting from the Court of Protection.
At the hearing, the judge authorised the continuing deprivation of LO’s liberty as being in his best interests, reallocated the matter to another judge (Mr Justice Poole), and ordered the local authority to come up with a list of options for – and best interests analysis of – different care providers and placements, plus if relevant a transition plan and a care and support plan. There were also other issues relating to internet use and contact, plus the local authority was required to address “whether, and to what extent, external support may be required from a behavioural specialist and/or psychologist”.
Thematter was listed to come back to court on the first available date after 16th December 2024 before Mr Justice Poole.
The next time we spotted it in the listings was 12th February 2025, so that probably was the first available date. It appeared as “in Court as in Chambers” which is a fancy legal way of saying “in private”.
We were puzzled about why this hearing had been listed as private, given that both the hearing Celia had attended remotely, and the one I’d tried to attend in person, had been listed as “public”. When we asked about this, we were simply told this hearing had been “vacated” (i.e. it wasn’t happening), so we are none the wiser about whether (and if so why) the case is now being heard in private. It might be another mistake – or it might not.
We also don’t know why the hearing listed for February 2025 didn’t take place. It might be because everything has been done in accordance with the judge’s directions and LO is settled in his new home with the support of a psychologist, and all of the parties have agreed that a hearing isn’t needed. Or it might be because the case isn’t ready to be heard again – because (for example) the local authority hasn’t yet assembled a list of options for places where LO could live, or has not worked out agreement to funding them, in which case there would be no options for the judge to consider and make decisions about in LO’s best interests. We just don’t know. We’ll be keeping an eye out for this case coming back to court in the future.
This blog illustrates the difficulty of tracking hearings of cases we’re interested in across the months and years that they’re before the court and, in particular, the challenges we face when hearings are wrongly listed as “in person” and no steps are taken to correct this.
Transparency requires the judiciary, lawyers, and court staff to be alert to the possibility of would-be observers at their hearings and proactively to facilitate our attendance.
Amanda Hill is a PhD student at the School of Journalism, Media and Culture at Cardiff University. Her research focuses on the Court of Protection, exploring family experiences, media representations and social media activism. She’s a family member of a protected party in a Court of Protection case and acted as a Litigant in Person. Amanda is on LinkedIn (here), and also on X as (@AmandaAPHill) and on Bluesky (@AmandaAPHill.bsky.social)
[1]Thank you to Celia Kitzinger who wrote the paragraphs about what happened in the July 2024 hearing and to Daniel Clark who raised concerns about the “private” listing of this case in February this year.
[2]Celia Kitzinger has no record of having received a Transparency Order for the hearing she observed on 10th July 2023 (despite emails asking for one). I was sent the approved order – which includes lots of names of both public bodies and individuals involved in this case – but no Transparency Order. So this blog post has been written without any injunction concerning reporting restrictions having been served on us at any point. In accordance with the standard restrictions imposed by these Orders, we have not published P’s name, the name of his family members, anyone’s contact details, or anything likely to identify any of these people or where they live. We have also – to be on the safe side – chosen not to name the applicant local authority or the respondent integrated care board – those these should be (and normally are) in the public domain. We have asked for a Transparency Order and will amend this blog post as necessary if or when we receive it.
[3]The blog post cited earlier (Observing a remote hearing in court with the judge) is also about lack of progress in finding an adult placement for a young person transitioning to adult care and – coincidently – raises remarkably similar concerns.
Promoting Open Justice in the Court of Protection 