EF v The London Borough of Hackney & Anor

This is my judgment in respect of an appeal against the order of District Judge Ellington (hereafter “the Judge”), dated 13 November 2025, to dismiss an application for the discharge of a Transparency Order (hereafter “the TO”) made in proceedings before the Court of Protection. The appellant is P’s mother. The respondents are the relevant local authority and P, through her litigation friend. The Judge granted permission to appeal. The appeal was allocated to Tier 3. I heard the appeal at a contested hearing on 10 March 2026. All three parties were represented by experienced counsel. I reserved my decision. I have little difficulty in determining that the correct outcome is to dismiss the appeal and endeavour to set out my reasons for doing so below.

P is 30 years old. She has a severe learning disability, autism, epilepsy, attention deficit hyperactivity disorder, hyperkinetic disorder, limited verbal communication skills and significant support needs, including the need for constant monitoring during the day and night. P was born in Hackney and lived with her mother and siblings until she was nineteen. P has lived in local authority provided care for the last 11 years. Previous Court of Protection proceedings commenced in 2012 and were concluded by an order of the President in February 2015. P had been moved at least six times in the preceding ten years and had previously been detained under the Mental Health Act 1983.

These proceedings were issued in August 2019 pursuant to section 21A Mental Capacity Act 2005 (hereafter “the MCA”). The TO was made at the outset of proceedings in standard terms. In December 2021, the Council applied for an urgent authorisation of an interim move to Y Placement with a package of care provided by M Agency. Mrs EF ultimately agreed to the move on the basis that it would be an interim move only and flagged her concerns about the significant distance between Y Placement and their family home. Following the move, there was an extensive search for alternatives.

An expert social worker opined on the criteria for identifying an alternative placement and provided a detailed service specification. His expert opinion was that P’s needs would best be met in a single occupancy accommodation with a provider that specialises in supporting individuals with autism and learning disability.

In April 2024, an alternative placement was identified, H Home. In May 2025, H home staff undertook a comprehensive pre-admission assessment and confirmed that they could meet P’s needs. A risk assessment recognised the importance of 3:1 support. Mrs EF was impressed by this team and the proposed new placement.

Shortly prior to the final hearing in this matter on 17 and 18 March 2025, P’s treating consultant psychiatrist provided a report pursuant to section 49 of the Mental Capacity Act 2005. His view was that P was doing very well at her current placement and he was concerned about the risks of a move. In his report, he attributed an improvement in her mood to the medication she was receiving. He noted that P’s family is important to her health and wellbeing and that there is a “potential negative effect on P’s mental health and wellbeing from living away from the community and the environment that she grew up in.”

Mrs EF’s view was that a move to H Home was in P’s best interests. The property was closer to the family home so the family could visit P. Mrs EF’s position was that it was not in P’s best interest to continue living and receiving care at Y Home.

At the final hearing, the court declared that P lacked capacity to make decisions about her care, residence and conduct of these proceedings and that she lacked capacity to enter into tenancy agreements. The court determined that it was in P’s best interests to remain residing and receiving care at Y Home. A written judgment was handed down on 6 May 2025. The final order directed that any party wishing to vary or discharge the TO or make any application consequential upon the judgment shall do so by 13 May 2025.

The TO provides as follows. The persons bound by the Injunction are set out as

The subject matter of the Injunction set out in the TO is:

The TO prevents people from

The TO does not prevent people from:

The TO has effect until further order of the court.

Mrs EF’s case for setting aside the TO was set out in her evidence. The main parts are as follows:

The London Borough of Hackney (hereafter “Hackney”) opposed the application. It did not accept that the “imposition of the transparency order prevents EF from raising the issues within a public forum or to discuss her case generally as set out in her statement.” Their principal concern was the risk to the stability of the P’s current placement.

The Official Solicitor’s position on behalf of P was:

The Judge handed down a careful and detailed judgment. She noted no party sought to publish her best interests judgment handed down earlier. She set out the legal background by reference to the Rules, Practice Direction, the competing European Convention on Human Rights (“ECHR”) rights and made reference to a significant amount of case law. I need not set it all out, it is very similar to my own summary below.

The Judge determined the TO “breached” Mrs EF’s Article 10 rights. She held:

The Judge found that discharge of the TO would “breach” P’s Article 8 rights. She held:

The Judge went on to consider whether there was a legitimate aim for the “breach” of Mrs EF’s Article 10 rights. She answered that by identifying as the legitimate aim the prevention of the breach of P’s Article 8 rights.

The Judge then goes on to set out her structured analysis as follows:

The Judge then considers whether proceedings had concluded. I will return to her reasons in Ground 3 below.

Her conclusion is then set out as follows:

Mrs EF’s grounds of appeal are as follows:

By way of the Human Rights Act 1998, Articles 8 and 10 ECHR are incorporated into domestic law (see - section 1 and schedule 1). They provide, respectively, as follows:

The practice of weighing the competing rights enshrined in Articles 8 and 10 is set out by Lord Steyn in what he refers to as the “ultimate balancing test” in

In re S remains good law although should now be read with Abbasi.

As a public authority, the court is required to act in accordance with both arts. 8 and 10 (HRA 1998, s 6). Section 12 HRA 1998 applies to this application. The court is considering an application that will affect the exercise of the right to freedom of expression. Section 12(4) HRA 1998 requires the court to have “particular regardto the importance of the Convention right to freedom of expression”.

The general rule is that Court of Protection proceedings are heard in private, see rule 4.1 of the Court of Protection Rules (“COPR 2017”). But, by rule 4.3, supplemented by Practice Direction 4C, the court has the power to make an order for a hearing to be held in public, or partly in public and that is the ‘ordinary approach’ (CS, AG v PS v Professor Celia Kitzinger[2024] EWCOP 6 (“CS”), [2] and see Practice Direction 4A, [2.1]). See also Peter Jackson LJ in Hinduja v Hinduja [2022] EWCA Civ 1492 at [27] – the general rule remains that hearings are in private unless and until an order to the contrary is made.

If such an order is made, the court may impose restrictions including those on the publication of the identity of any party, P, any witness or any other person and prohibit the publication of any information that may lead to such a person being identified (COPR 2017, r 4.3(2)).

PD4A and PD4C expressly supplement Part 4 of the COPR 2017. PD4A is divided into three parts with a general introduction. In that introduction, it sets out that part 1 does not apply where the court makes an order pursuant to PD4C and generally part 2 will not apply to such an order unless “different or additional restrictions on the publication of information relating to the proceedings are imposed in a subsequent order.” Part 3 sets out what information relating to proceedings held subject to reporting restrictions can be communicated. Paragraphs 33 and 34 deal with the communication of information generally and in the course of the proceedings. Paragraph 35 sets out the circumstances in which parties can communicate with particular individuals for certain purposes. Insofar as relevant, it allows a party to seek “counselling services” from a “health care professional or a person or body providing counselling services”. Paragraph 36 deals with communication to ministers but its principal focus is on dealing with any application that might be made to the ECHR.

PD4C is made under rule 4.3 and provides for the circumstances in which the court will ordinarily make an order under rule 4.3(1).

In considering an application to discharge a transparency order, the court’s role is not, nor should it be, policing the debate. As HHJ Hilder observed in CS, at paragraph 21:

HHJ Hilder set out the approach to an application to discharge a transparency order in CS. She noted that the reason for the application was that applicant wished to “air concerns that individuals and/or public bodies either actively prevented her from maintaining contact with her father or at least failed to facilitate ongoing relationships with a vulnerable person” [11]. That was a point of dispute with another family member. Given the parties were not represented, HHJ Hilder set out the legal framework for the application by reference to Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593.

In re S falls to be considered in light of the Supreme Court’s judgment in Abbasi, note that the latter concerned children (where the default position was that the hearings should be conducted in private) and particularly sensitive withdrawal of life-sustaining treatment from babies. Lord Reed and Lord Briggs (with whom Lord Hodge and Lord Stephens agree) noted that the law has moved on since In re S, and observed as follows (see [128-131]):

On the length of any injunction, the Supreme Court noted the practice of granting indefinite injunctions and considered the duration of an injunction as relevant to the assessment of the proportionality of any measure (see [142], [152]). The court observed that an injunction is “likely to need to be time-limited, either so as to expire automatically at the end of the proceedings or […] to expire at the end of a chosen cooling-off period” (at [142]).

Further, at paragraph 182, the approach was summarised, insofar as relevant, as follows:

The structured analysis to the proportionality assessment was set out by the Supreme Court in Bank Mellat v HM Treasury (No 2) [2013] UKSC 39; [2014] AC 700, at paragraph 20:

In CS,HHJ Hilder reminded herself of the ‘naming propositions’, from Lord Rodger in In Re Guardian News and Media Limited [2010] UKSC 1, where he observed:

In re Carl Gardner [2025] EWCOP 34 (T3), Poole J considered both the Abbasi case and the Court of Appeal decision in PMC v Cwm Taf Morgannwg University Health Board [2025] EWCA Civ 1126. He took into account the different types of orders that can be made and analysed the transparency order as follows (paras 20-21):

He also considered the implications of the Transparency Order at paragraphs 26 and 27:

He noted the “purpose of a standard TO made under PD4C is to protect the interests or Article 8 rights of anyone other than P” ([34]) and explained further as follows:

Ms David in her effective written and oral submissions asked me to allow the appeal. On Ground 1, she submitted that the Judge failed to follow the structured approach to the Article 8 and Article 10 ECHR questions as set out in Abbasi and the Judge did not follow Bank Mellat on proportionality. The Judge failed to consider proportionality against Article 10 when making an indefinite order. The Judge failed to appreciate the significant impact on Mrs EF of the TO. On Ground 2, it was said the Judge noted section 12(4) HRA 1998 and observed that article 10 is an “important right” but failed to go further and give it particular regard as required by section 12(4). She accordingly made an error of law. On Ground 3, the Judge was confused about the end of the proceedings and it was wrong to take the view the Re X DOL procedureresulted in the proceedings before her continuing. On Ground 4, the Judge erred in her analysis of Mrs EF’s motivation and this was an error in respect of her proportionality analysis. Lastly on Ground 5, Ms David submitted that because PD 4A at paragraph 35 provides for exceptions for formal counselling but not informal support and that had the Judge realised that part 3 of PD4A continues to apply, she would have factored that into the proportionality analysis. The Judge therefore erred.

On behalf of Hackney, Ms Kohn resists the appeal. She submits that the Judge plainly engaged and applied both Abbasi and Bank Mellat. On Ground 2, Ms Kohn submitted that: “There is no authority to suggest that s.12(4) HRA implies a “particular regard” needs to be had to article 10 which would privilege it over competing rights; rather (as set out above), there is a wealth of appellate authority – Re S, Abbasi, confirming that article 10 rights do not take precedence over other, competing rights, such as article 8.” On Ground 3, it is said the proceedings had not ended and reference is made to Poole J’s decision in Re PQ (Court authorised DOL: representation during review period [2024] EWCOP 41 (T3) at paragraph 38, where he held: “When the Court orders a review then the proceedings are not brought to an end. The proceedings are dormant for the review period but they remain ongoing – per Munby J in Salford City Council v GJ ([2008] EWHC 1097 (Fam). On Ground 4, it was submitted this was no more than the proper exercise of the Judge’s discretion as the tribunal of fact. On Ground 5, Ms Kohn accepts that the Judge’s analysis of PD 4A includes an error and that Part 3 of PD 4A did properly apply. She however states this is immaterial to the proportionality assessment.

Ms Harris on behalf of the Official Solicitor submits that it was disproportionate to “uphold” the TO. In a supplementary skeleton filed on 9 March 2026, Ms Harris submitted:

I am not sure I understood the Official Solicitor’s position in circumstances where she supported the entire discharge of the TO below and on appeal, but sought restrictions to be made at the appeal hearing. No application or Respondent’s Notice was filed.

I can state my conclusions shortly. I note what Peter Jackson LJ said in Hinduja v Hinduja at paragraph 47 in respect of an appeal against a decision to discharge a transparency order at the conclusion of proceedings: “The threshold for appellate interference with an evaluative conclusion of this kind is a high one, particularly in the field of case management.” Moylan LJ set out with clarity the high hurdle for an appellate court overturning a discretionary or evaluative exercise by a trial judge most recently in X (A Child) [2026] EWCA Civ 518 at paragraphs 67 to 68. These principles apply to this appeal. Whilst there are five grounds of appeal all of them go to an attack on the Judge’s structure and evaluation of the Article 8 and 10 issue and proportionality.

On Ground 1, it is clear from paragraphs 31 and 56 of the judgment that the Judge was following the structure set out in Abassi and in Bank Mellat. She considered the extent to which Mrs EF’s Article 10 rights were engaged by the TO. She set out that the TO prevents Mrs EF from communicating any material or information that discloses or is likely to disclose that she is P’s mother and that P has been the subject of court proceedings concerning her residence and care. Correctly, it was noted the TO does not prevent Mrs EF from raising safeguarding concerns.

The judgment is well structured and follows the correct approach to resolving the interferences in the respect of the Article 8 and Article 10 rights of P and Mrs EF respectively. It sets out how the TO interferes with Mrs EF’s Article 10 rights. It sets out that the TO is in accordance with the law and that the continued TO pursues the legitimate aim by way of reference to Article 8 (2) and 10 (2). It explicitly considered the interferences against the test of necessity in a democratic society. The judgment then considers proportionality. It notes the deeply sensitive personal information filed in the proceedings and that disclosure of the same would be “a grave invasion of her privacy” and that the stability of the placement would be imperilled by discharge of the TO. That is to say the Judge noted P may lose her home. She noted P’s home address could become public.

This was an evaluative exercise. The Judge correctly summarised the law and the evidence. She produced a structured, clear and reasoned analysis. The complete abandonment of the TO would patently not simply interfere with P’s Article 8 right to respect for a private and home life, it would violate it. In the course of oral argument I asked why Mrs EF did not accept the judge’s careful attempt to identify a list of people in respect of whom she could discuss the proceedings. Ms David told me that Mrs EF considered that in of itself would violate her own Article 8 rights. Against this background, the judge’s assessment of proportionality was perfectly sound. This ground fails.

On Ground 2, the Judge acknowledged the application of sub-section 12 (4) at paragraph 28 of her judgment. She was right to note this but also to balance Article 10 with Article 8. As Peter Jackson LJ held in Hinduja v Hinduja at paragraph 46 (2): “Our only observation is that, in a field that calls for the case-sensitive balancing of different kinds of rights, it may be unhelpful to label a particular right as 'presumptive'.” I am not clear what “discharging the s. 12 (4) obligation” means in the context of the Judge’s consideration of discharging the TO. Ms David at paragraph 56 does not submit in concrete terms what the Judge should have done but failed to do. The Judge acknowledged s. 12 (4) HRA and was well aware of the draconian nature of the TO. She made no error of law.

As for Ground 3, the Judge held:

The Judge was not referred to Poole J’s decision in Re PQ but irrespective her conclusion was correct. Proceedings had not ended. She was therefore correct to proceed as she did. This is not contrary to the overriding objective or dicta from the Court of Appeal. In any event, the Judge was correct to be concerned P may lose her home. The issue of whether it is in her best interests to reside and be cared for at Y Home is an issue for the DOL review hearing. The review hearing is therefore connected to the issues the Judge had to consider on discharge of the TO. The Judge made no material error of law or approach to the balancing of the rights and her decision not to discharge the TO. This ground is dismissed.

As for Ground 4, I agree with Ms Kohn that the Judge was entitled to evaluate the evidence she heard and read and arrive at this factual conclusion. Even if there is a small difference of emphasis on the appellant’s motivation, the judgment must be read as a whole in a common sense way. Ms David’s attempt to demonstrate internal inconsistencies leads to nowhere. The Judge was very well aware of the competing rights between P and what her mother wanted and why, as is apparent from the judgment read as a whole. This does not impact on proportionality.

Lastly, in respect of Ground 5, it is accepted that the Judge made an error, as Part 3 of PD4A did properly apply to the TO. Ms David’s sole point under this ground relates to the appellant obtaining formal counselling but not informal in respect of discussing the impact of the proceedings on her. The appellant could have identified a number of informal support people and they could have been provided with the TO and the Judge would have granted permission for Mrs EF to discuss the proceedings with them. As guardian of her own Article 8 rights Mrs EF chose not to disclose her informal support network to the court. The Judge, as the guardian of P’s rights, was entirely right to protect her Article 8 rights even if this prejudices with whom the appellant can talk to about P’s role in these proceedings. The Judge’s proportionality evaluation was correct and in no way impacted by this minor error. This ground is dismissed.

The appeal is dismissed.