EF v The London Borough of Hackney & Anor [2026] EWCOP 20 (T3)

[2026] EWCOP 20 (T3)Case No 12174660
IN THE COURT OF PROTECTION
ON APPEAL FROM A TIER 1 JUDGE OF THE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 5/05/2026
Before
THE HONOURABLE MR JUSTICE MCKENDRICK
Between
EFApplicantTHE LONDON BOROUGH OF HACKNEYRespondentsP (By her Litigation Friend the Official Solicitor)Respondent
Ms Stephanie David (instructed by Irwin Mitchell) for AppellantMs Nicola Kohn (instructed by Hackney Legal Services) for First RespondentMs Bethan Harris (instructed by Bindmans LLP) for Second RespondentHearing Hearing dates: 10 March 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on 5 May 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................THE HONOURABLE MR JUSTICE MCKENDRICK
[1]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. The Background[2]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.[3]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.[4]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.[5]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.[6]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.”[7]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.[8]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 Terms of the TO and the Application to Discharge It[9]The TO provides as follows. The persons bound by the Injunction are set out as “(i) the parties and their representatives, (ii) the witnesses, (iii) all persons who attend all or any part of an attended hearing, (iv) all persons who by any means obtain or are given an account or record of all or any part of an attended hearing or of any order or judgment made or given as a result of an attended hearing, (v) all persons who are provided with or by any means obtain documents and information arising from this application, and (vi) any body, authority or organisation (and their officers, employees, servants and agents) for whom any such person works or is giving evidence.” (ii) the witnesses, (iii) all persons who attend all or any part of an attended hearing, (iv) all persons who by any means obtain or are given an account or record of all or any part of an attended hearing or of any order or judgment made or given as a result of an attended hearing, (v) all persons who are provided with or by any means obtain documents and information arising from this application, and (vi) any body, authority or organisation (and their officers, employees, servants and agents) for whom any such person works or is giving evidence.”[10]The subject matter of the Injunction set out in the TO is: “(i) any material or information that identifies or is likely to identify that:(a) [P] is the subject of these proceedings (and therefore a P as defined in the Court of Protection Rules 2017), or that(b) any person is a member of the family of the subject of these proceedings (namely [P]), or that(c) The manager of the care home (who the Court has so identified to the parties in private) has taken a part in or been referred to in these proceedings; and (ii) any material or information that identifies or is likely to identify where any person listed above lives, or is being cared for, or their contact details”.[11]The TO prevents people from “(7) Subject to further order of the Court and save as provided by paragraph (9) the Persons Bound by this Injunction shall not by any means (and so orally or in writing or electronically by way of social media or in any other way) directly or indirectly:(i) publish or communicate the Information or any part or parts of it, or(ii) cause, enable, assist in or encourage the publication or communication of the Information or any part or parts of it.”[12]The TO does not prevent people from:(a) reporting or commenting upon these proceedings, save in so far as such reports or comments are prohibited pursuant to paragraph (7) above,(b) reporting or commenting upon proceedings in the Court of Protection generally or in relation to applications similar to this one,(c) publishing information relating to any part of a hearing in a court in England and Wales (including a coroner's court) in which the court was sitting in public and did not itself make any order restricting publication,(d) complying with an order of any court with competent jurisdiction, and(e) disclosing information for the purposes of caring for [P]. (ii) ​does not prevent the Persons Bound by this Injunction from communicating information relating to these proceedings to the persons and in the circumstances set out in paragraphs 33 to 37 of Part 3 of Practice Direction 4A to the Court of Protection Rules 2017 (which permits the communication of specified material and information in certain circumstances). (iii) does not apply to a public hearing of, or to the listing for hearing of, any application for committal.”[13]The TO has effect until further order of the court.[14]Mrs EF’s case for setting aside the TO was set out in her evidence. The main parts are as follows:a. She set out her understanding of the TO (including its breadth), which meant that if she told someone her daughter was the subject of Court of Protection proceedings, she would be in breach of it.b. She emphasised that P’s article 8 rights are not just concerned with her privacy but ensuring her care needs are met, seeing her family and being in the community where she grew up.c. She explained how she feels like she is being gagged by the terms of the TO and that she cannot have normal everyday conversations with her friends and family (including seeking their support), which has caused her great distress and has led her to feel isolated.d. She also wants to raise issues arising from the proceedings publicly, such as the lack of local provision for people in P’s position, her concerns about P’s care needs not being met. The Court of Protection proceedings are intrinsically linked to this history. Her witness statement said:
“I also think it is particularly relevant that the court has spent a number of years trying to identify suitable provision in Hackney and the local area for [P], and that it has found that the only option identified during this time did not have sufficient experience or expertise to care for someone of [P]’s complexity, and that the only option is for her to be cared for away from her family and local community.”
[15]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.[16]The Official Solicitor’s position on behalf of P was:
“The Official Solicitor is concerned that discharging the transparency order in full could lead to EF making criticisms of the current placement, for example through social media, which could interfere with [P]’s Article 8 ECHR rights. After careful consideration, the Official Solicitor’s view is that it is not the purpose of a transparency order to prevent EF from making such criticisms of the placement (or others), which she is entitled to do under Article 10 ECHR and is a separate issue from protecting the integrity of the Court of Protection proceedings through a transparency order.”

The Judge’s Judgment

[17]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.[18]The Judge determined the TO “breached” Mrs EF’s Article 10 rights. She held:
“EF wants to be able to talk and publish freely about circumstances concerning her daughter P, including in respect of the existence of the court proceedings. In her submissions, Ms David says the sole motivation for this application is the lack of specialist placements in Hackney and the surrounding areas to meet the needs of people with such complex needs as P, such that P was moved out of borough. EF gave additional reasons in support of the application. Ms David identifies this as an issue of national importance. She may well be right. Certainly, there is a public interest in the issues, supporting EF’s article 10 rights.”
[19]The Judge found that discharge of the TO would “breach” P’s Article 8 rights. She held:
“I accept EF’s submission from the Abassi case that disclosure of personal information may not of itself represent an intrusion into an individual’s private life to represent a breach of article 8 rights. However, that does not mean that it will never represent such an intrusion and breach. In P’s case so much private and deeply personal information has been put before the court with the benefit of the Transparency Order that discharging it would clearly represent such an intrusion and breach. This appears to be accepted by the Official Solicitor. Local authority and perhaps EF, who says in her witness statement: “I understand the importance of [P]’s privacy being respected and can understand why she has been anonymised throughout the proceedings but there are other parts of her Article 8 rights that need to be looked at.”
EF and the Official Solicitor seek nothing other than the total discharge of the Transparency Order. Anyone could publish anything from the material put before the court, given that the hearings were in public, if the order were discharged. Although EF and the Official Solicitor submit that P would have the same rights to recourse as any other private individual, that is not a favourable answer for a ‘P’ as defined by the Act, especially when the court had provided protection, in the form of the Transparency Order and then removed it. “[20]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:

“Here I consider the breach of both Article 8 and Article 10 together, as they are the necessary alternative consequences of discharging or not discharging the Transparency order. I have in mind the guidance from Abassi at paragraph 182 relied on by EF in Ms David’s position statement. [She then quotes that paragraph from Abassi]. I note that the local authority agrees that any Transparency order should be limited in duration to during the lifetime of [P]. I note also that this does not assist with the current concerns of EF, but it does accord with the guidance in the recent decision of Gardner. I have to consider the further authorities put forward by EF on the test of proportionality. I recognise and give weight to the importance of the human interest of having the name of [P] in media reporting, as considered In CS. In CS, HHJ Hilder reminded herself of the ‘naming propositions’, from Lord Rogers in In Re Guardian News and Media Limited [2010] UKSC 1, where he observed: “‘What’s in a name?’ ‘A lot’, the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature. Article 10 protects not only the substance of ideas and information but also the form in which they are conveyed. Editors know best how to present material in a way that will interest the readers of their particular publication and so help them to absorb information. A requirement to report it in some austere abstract form devoid of much of its human interest could well mean that the report would not be read, and the information would not be passed on.”
The use of an alternative pseudonym may enable the human interest to be retained in some contexts, but EF and [P] retain the same surname. Using a different name may retain human interest and avoid an austere abstract form. I have to consider, and I accept, the argument that it is not for this court to police how and how accurately, any reporting of material from proceedings is reported if reporting is allowed. This was considered in CS and emphasised by the Official Solicitor in this case. I note 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, §20 relied on by EF:
“[T]he question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community.”
I have considered Poole J’s analysis of the nature of a Transparency Order in Gardner and his conclusion that it should be categorised as an anonymity order and his recognition that it is a derogation of the principle of Open Justice which is built into the Court of Protection Rules 2017. However, that does not assist in my determination of the competing rights under Articles 8 and 10.” are the necessary alternative consequences of discharging or not discharging I note that the local authority agrees that any Transparency order should be assist with the current concerns of EF, but it does accord with the guidance in I have to consider the further authorities put forward by EF on the test of proportionality. I recognise and give weight to the importance of the human interest of having the name of [P] in media reporting, as considered In CS. In CS, HHJ Hilder reminded herself of the ‘naming propositions’, from Lord Rogers in In Re Guardian News and Media Limited [2010] UKSC 1, where he “‘What’s in a name?’ ‘A lot’, the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature. Article 10 protects not only the substance of ideas and information but also the form in which they are conveyed. Editors know best how to present material in a way that will interest the readers of their particular publication and so help them to absorb information. A requirement to report it in some austere abstract form devoid of much of its human interest could well mean that the report would not be read, and the information would not be passed on.” retained in some contexts, but EF and [P] retain the same surname. Using a police how and how accurately, any reporting of material from proceedings is reported if reporting is allowed. This was considered in CS and emphasised I note the structured analysis to the proportionality assessment was set out by “[T]he question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community.” which is built into the Court of Protection Rules 2017. However, that does not assist in my determination of the competing rights under Articles 8 and 10.”

which is built into the Court of Protection Rules 2017. However, that does not

[22]The Judge then considers whether proceedings had concluded. I will return to her reasons in Ground 3 below.[23]Her conclusion is then set out as follows:
“I find it is a disproportionate breach of [P]’s Article 8 rights to discharge the Transparency Order, even taking account of EF’s Article 10 rights. [P] is a young woman whose deeply sensitive personal information has been put before the court. Disclosure of the entirety of that information or some of it would represent a grave invasion of her privacy. Her identification whilst living at the current placement may interfere with the stability of the placement and her stability at the placement. It is not any attempt to police what is written about the care provider to note that discharging the Transparency Order completely leads to a risk of door stepping at the address and asking for comment from hard pressed staff at the placement. It is not possible to have formal evidence on this before making this decision because once the full details are in the public domain, the damage would be done. Precisely because EF seeks a full public debate, without the protection of the Transparency Order, [P]’s the address would be known. I have no information as to [P]’s wishes and feelings about this. I have no submissions as to the degree to which she would be able to express them. I have no submissions or evidence that she would want to be a public figure or campaigner. I have found that it is in her best interests to see her family and I have found EF to be a devoted mother. I have found that [P] is happy at the Placement and it is in her best interests to live there currently. She requires the continued protection of the Transparency Order, the purpose of which is to protect her and the integrity of the proceedings. As I have found, none of the cases relied on have a similar factual matrix to [P]’s situation. They assist on the process to be followed and factors to be considered, but not on the decision I should reach. [P] is alive, subject to continuing court proceedings, highly vulnerable and has experienced a high number of placements which have failed in the past, as well as detentions under the Mental Health Act 1983. Neither EF not the Official Solicitor have offered any alternative to full discharge of the Transparency Order. I have recognised the need to support EF so far as is proportionate and appropriate in her aims, taking into account [P]’s Article 8 rights. I am willing to consider giving EF permission to discuss the case with close supporters, such as her adult children or her siblings, provided she serves the Transparency Order on them. I would need details of any person or category of person proposed. I am also willing to consider giving EF permission to discuss the case with her MP. Two observers from the Open Justice Transparency Project attended the hearing and I understand were provided with position statements and served with the Transparency Order. They can blog about [P] whilst complying with the Transparency Order in the same way any members of the press can, using pseudonyms as appropriate. For the avoidance of doubt, EF can raise safeguarding concerns about [P] with the relevant Ombudsman and Local Authority as she has done throughout. As I said at the hearing, EF can liaise with the Department of Work and Pensions as any mother might. Whilst I acknowledge the ‘chilling effect’ of the Transparency Order, the analysis I have reached is that with appropriate safeguards to support EF, the order is necessary and proportionate for the protection of [P].”
The Grounds of Appeal[24]Mrs EF’s grounds of appeal are as follows:a. Ground 1: The Judge erred by failing to apply the structured approach to the balancing of article 8 and article 10 Convention rights as set out in Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust [2025] UKSC 15 [2025] 2 W.L.R 815 (“Abbasi”) and on the question of proportionality, the test set out in Bank Mellat v HM Treasury (No 2) [2013] UKSC 39; [2014] AC 700 (“Bank Mellat”).b. Ground 2: The learned Judge failed to discharge the obligation on the Court set out in section 12(4) of the Human Rights Act 1998 (“HRA 1998”) to give particular regard to the importance of Article 10.c. Ground 3: The Judge made an error of law in determining that these proceedings have concluded (but for the application to discharge the TO), which would mean the proceedings relating to community deprivation of liberty would continue the entire time that a person is deprived of their liberty in the community.d. Ground 4: The Judge erred in finding that the “sole motivation” for this application was the lack of specialist placements in the Hackney and surrounding areas. The principal reason was to allow Mrs EF to speak freely and exercise her article 10 rights (without fear of sanction), as well as allowing Mrs EF to act as an advocate on P’s behalf and she erred in finding that, notwithstanding the TO, Mrs EF could “continue to advocate for her daughter”e. Ground 5: The Judge made an error of law in finding that Practice Direction 4A does not apply to the TO and it has no direct relevance to this application, it is apparent from the Practice Direction itself, the terms of the TO, and Inre Carl Gardner [2025] EWCOP 34 (T3). The Background Law[25]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:
“Right to respect for private and family life 1) Everyone has the right to respect for his private and family life, his home and his correspondence. 2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” “Freedom of expression 1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
[26]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 Re S (A Child) (Reporting Restrictions)[2004] UKHL 47; [2005] 1 AC at 17 and involves:a. recognising that neither article “as such” has precedence over the other;b. requiring, where the value of the two articles is in competition, an intense focus on the comparative importance of the specific rights being claimed in the individual case;c. the justification for interfering with or restricting each right must be taken into account;d. the proportionality test must be applied to each article.[27]In re S remains good law although should now be read with Abbasi.[28]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”.[29]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.[30]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)).[31]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.[32]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).[33]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:
“It is not the role of the Court of Protection, still less within its practical ability, to control the accuracy and fairness of reporting. In any event, that is not the meaning of freedom of speech. The answer to any concerns of ‘balance’ in reporting is probably more openness, not less.”
[34]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.[35]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]):
“The proper application of the Convention requires a more structured approach than the concept of “balancing” rights might suggest. In assessing whether there has been a breach of article 10 (or, mutatis mutandis, a breach of article 8), the court begins by asking whether there was an interference prescribed by the law. The next question is whether it pursued a legitimate aim, ie an aim which can be justified with reference to one or more of the matters mentioned in article 10(2) (or article 8(2), as the case may be). The remaining question is whether the interference was necessary in a democratic society. It is at that stage that the court may be required to strike a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other: Axel Springer AG vGermany (2012) 55 EHRR 6, para 84. “In a series of Grand Chamber judgments, the court has identified a number of “criteria”, or factors of significance, which it addresses when balancing competing rights under articles 8 and 10: […]. The Grand Chamber has also said on many occasions that where the national authorities have weighed up the competing rights in compliance with the criteria laid down in the court’s case law, strong reasons are required if it is to substitute its view for that of the domestic courts: […]. The factors identified by the European court should be taken into account by our domestic courts, so far as relevant, when considering the balancing of competing rights under articles 8 and 10. “Both in applying our domestic law, and for the purposes of article 10, the treatment of children in cases of the present kind is not a purely private matter between the treating clinicians and the children or their parents (see, for example, Bergens Tidende v Norway(2001) 31 EHRR 16). The treatment of patients in public hospitals is a matter of legitimate public concern, and that must be especially true of conflicts between parents and clinicians in relation to the treatment of gravely ill children. There is therefore an important public interest in the freedom of the media, and of other individuals and organisations, to impart information about such matters, subject to the duties and responsibilities described above. Expressions of opinion in the course of a debate on such matters will also be afforded a special degree of protection by the Convention, as is illustrated by such cases as Bergens Tidende v Norway and Annen v Germany(Application No 3690/10) (unreported) 26 November 2015. (3) Protecting the privacy of clinicians “The disclosure of personal information about an individual is not necessarily an intrusion into his or her private life, or in any event a sufficiently serious intrusion to engage the protection either of the common law or of article 8 (see, for example, Axel Springer AG v Germany, para 83). It is also necessary to bear in mind that the management and staff of public hospitals have the status of public figures for the purposes of the Convention case law on articles 8 and 10: see, for example, Frisk and Jensen v Denmark(Application No 19657/12) (unreported) 5 December 2017, para 60.”
[emphasis added][36]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]).[37]Further, at paragraph 182, the approach was summarised, insofar as relevant, as follows:
“(10) Such injunctions should be of limited duration. […] “(15) When the court considers whether the grant or continuation of such an injunction is compatible with the Convention rights protected by article 10, or whether its refusal or discharge would be compatible with article 8, it needs to consider (a) whether there is an interference with the relevant right which is prescribed by the law, (b) whether it pursues a legitimate aim, ie an aim which can be justified with reference to one or more of the matters mentioned in article 10(2) (or article 8(2), as the case may be), and (c) whether the interference is necessary in a democratic society. “(16) In answering the last of those questions in relation to article 10, the need for any restriction of freedom of expression must be established convincingly. It must be justified by a pressing social need, and must be proportionate to the legitimate aim pursued. This consideration applies with particular force to preventive restraints on publication, and is reflected in section 12(3) and (4) of the Human Rights Act. “(17) In assessing proportionality in a situation where there are competing rights under articles 8 and 10, the court should consider the criteria established in the case law of the European court, so far as relevant. “(18) The court should also consider how long the duration of any restriction on freedom of expression needs to be, and whether the reasons for the restriction may be affected by changes in circumstances. A permanent restriction would require compelling circumstances.”
[38]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:
“[T]he question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community.”
[39]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:
“‘What’s in a name?’ ‘A lot’, the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature. Article 10 protects not only the substance of ideas and information but also the form in which they are conveyed. Editors know best how to present material in a way that will interest the readers of their particular publication and so help them to absorb information. A requirement to report it in some austere abstract form devoid of much of its human interest could well mean that the report would not be read, and the information would not be passed on.”
[40]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):
“In the very recent Court of Appeal judgment in PMC v Cwm Taf MorgannwgUniversity Health Board[2025] EWCA Civ 1126, the Master of the Rolls, set out a taxonomy of orders: (i) A withholding order (”
WO”) to withhold or anonymise the names of a party or a witness including withholding information that would identify that person; (ii) A reporting restrictions order (”RRO”) to restrict the reporting of material disclosed during the proceedings whether in open court or by the public availability of court documents; (iii) An anonymity order (”AO”) to both withhold or anonymise names of a party or a witness and restraining the reporting of material disclosed during the proceedings. “[…] With respect, the standard TO is, in my view, an AO since it both anonymises the names of parties and others and restricts the reporting of material from the proceedings (material likely to identify not only the anonymised persons, but also where they live and where they are being cared for). If so, then it should be acknowledged that, unlike in civil cases where cases are routinely heard in open court without reporting restrictions, it is standard practice in the Court of Protection to make an AO of the court’s own motion at the outset of the proceedings. That is a derogation from the principle of open justice built in to the COP Rules 2017 and the Practice Directions and “ordinarily” applied. […]”[41]He also considered the implications of the Transparency Order at paragraphs 26 and 27: “Under paragraph 34, a party is permitted to communicate to a healthcare professional or person or body providing counselling services any information relating to the proceedings for the purpose of enabling the party or a member of the party’s family to obtain healthcare or counselling. It does not permit a party to disclose information to a supportive friend. “Read narrowly, the current TO in this case prohibits Ms Huntington from communicating to a friend or relative that she was Mr Gardner’s fiancée. Read less narrowly it prevents her from communicating with a friend or relative that she was Mr Garnder’s fiancée and that he was the subject of these proceedings. The narrower reading would be wholly unworkable and so the wider interpretation must be preferred. Nevertheless, the TO is clearly far reaching. Neither Ms Huntington nor any member of Mr Gardner’s family may communicate any material or information that discloses or is likely to disclose that Mr Gardner was the subject of court proceedings concerning his treatment and his ADRT - and the order carries a warning that breach of it may result in imprisonment.[42]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:
“Certainly, whilst the substantive proceedings were ongoing, and whilst Mr Gardner remained alive, it was necessary to protect his right to respect of his private and family life, protect the integrity of the proceedings, and to ensure that his treatment was not adversely affected by publicity or communications about information relating to the proceedings outside the courtroom. With the conclusion of proceedings and Mr Gardner’s death, there is no need to protect the integrity of the proceedings nor to protect his own Article 8 rights or his best interests. Those considerations no longer apply.”
The Position of the Parties On Appeal[43]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.[44]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.[45]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: In the event that this court decides that the outcome of the appeal should be that the TO should not remain in place, the court will consider whether other restrictions are appropriate after the hearing, consequent on the decision in the appeal. In this regard the Official Solicitor has made submissions in the Skeleton Argument dated 4 March 2026. She wishes to further submit that if the attended hearing is attended by members of the public, the following restriction should be ordered: Any persons who attended the hearing on 10 March 2026 or by any means are given an account or record of all or any part of the hearing or the judgment or order given as a result of the hearing must not publish any material or information that identifies [P] or any member of her family as being connected to the subject matter of the hearing.[46]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. Analysis[47]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.[48]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.[49]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.[50]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.[51]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.[52]As for Ground 3, the Judge held: An issue arose during the hearing as to whether the current proceedings have concluded. EF relies on the proceedings having concluded as one reason why her Article 10 rights should now take precedence. The Official Solicitor agreed. Neither had any authority on which they relied. …. Certainly, the continuing requirement for the court to authorise [P]’s deprivation of liberty distinguishes this case from all those relied on by EF, irrespective of the definition of whether proceedings have concluded and continue by further application or themselves continue.[53]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.[54]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.[55]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. Conclusion[56]The appeal is dismissed.