JF v London Borough of Hackney & Anor

JF

LONDON BOROUGH OF HACKNEY

EF

This is a long running case with complex considerations which has been in the Family Court and the Court of Protection for over 10 years.

The issue before the court today is whether to discharge a Transparency Order made by District Judge Beckley, as he was then, on 8 August 2019.

JF is a young woman with diagnoses of severe learning disability, autism, previous 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. She is a party to those proceedings, acting through a litigation friend, the Official Solicitor.

Until the age of 18 or 19, JF lived at home with her mother and siblings in Hackney. Since then, she has had at least six placements and she has been detained under the Mental Health Act 1983.

EF is JF’s devoted mother. She is the Second Respondent in this case.

I gave judgment after a contested hearing in proceedings under S16 of the Mental Capacity Act 2005 (“the Act”) in May this year. My judgment included a declaration that it was in JF’s best interests to remain in the current placement (which began as an interim placement). JF has spent more time at the current placement than at any other placement, although she has spent the greatest time living with her mother, EF. At the time of my judgment JF had been to EF’s home twice, to celebrate Christmas. She has now been one more time. The London Borough of Hackney has an open offer to transport EF to visit JF or JF to visit EF. EF is in Hackney. JF is in the Home Counties.

The hearing was in public, attended by nobody other than the parties with their legal representatives, and was subject to a Transparency Order made on 8 August 2019 under Practice Direction 4C of the Court of Protection Rules 2017 (“the Rules”).

The only application which has followed that judgment is an application of 13 May 2025 by EF for the Transparency Order to be discharged. That application is opposed by the Local Authority and is supported by the Official Solicitor.

The judgment from the contested order was not published. No party requested publication, and it does not fall within the category of cases which the then President of the Court of Protection, Sir James Munby, requested be published in his Practice Guidance of 16 January 2014 on Transparency in the Court of Protection. I am clear that I would not have agreed to publication in the form handed down without further scrutiny.

This judgment is given on 13 November 2025 following a hearing of 23 October 2025. A draft judgment was sent by e mail to counsel for review of any grammatical errors etc in advance of the judgment being handed down. No party sought to hear oral evidence from witnesses. The witness evidence in support of the application is a further witness statement from EF of 13 May 2025.

EF notified some media of the application but none attended. Two members of the Open Justice Transparency Project did attend.

I have no evidence as to JF’s wishes and feelings in relation to the application other than what EF feels they are. No party has requested any direction for such evidence to be adduced. The Official Solicitor has, nonetheless, adopted a position to support the application.

Rule 4.1(1) of the Court of Protection Rules 2017 (“the Rules”) provides that “The general rule is that a hearing is to be held in private”

Rule 4.3 (1) – (3) of the Rules then provides:

Practice Direction 4C is the relevant practice direction. At paragraph 2.1- 2.6, the Practice Direction provides that:

The court will ordinarily (and so without any application being made) -

Further to the provisions in the Rules referred to above, the contested hearing in May was in public but subject to the order of 8 August 2019 which imposed restrictions on the publication of information which identifies or may lead to the identification of the protected person (and others) or their whereabouts. Paragraph eight of the Transparency Order provided that it was to have effect until further order of the Court. A further order, providing for discharge of the Transparency Order, is what EF now requests.

Ms David for EF refers to Practice Direction 4A of the Rules imposing a requirement to consider Convention rights under the European Convention on Human Rights as applied domestically by the Human Rights Act 1998 (in addition to sections 1, 6 and 12(4)) (“the HRA”). The following provisions mean that Practice Direction 4A has no direct relevance to this application, as the Transparency Order was made pursuant to Practice Direction 4C and therefore Practice Direction 4A does not apply:

Ms David for EF acknowledges this analysis but refers to the terms of the Transparency Order itself, which includes at paragraph 9 (ii) (emphasis added):

Subject to further order of the Court this Injunction:

The inclusion of definitions contained within Practice Direction 4A in the Transparency Order does not mean that the Transparency Order applies that Practice Direction in its entirety. There is no such express provision. PD4A does not apply (part 1 and part 2).

There was a query as to whether the Transparency Order was an old draft in this case, leading to an inference that this Transparency Order is not the same as that considered in recent case law. I cannot see substantive difference between this order and the type of order used in recently decided cases and I have not been taken to any examples on this.

I note in paragraph 24 of Re Carl Gardner Deceased [2025] EWCOP 34 (T3) Mr Justice Poole appears to consider that Practice Direction 4A does not apply:

The subject matter of the injunction is set out at paragraph 6 of the Transparency Order:

I accept the analysis of the subject matter adopted by Poole J in the Gardner case (paragraph 27) that the Transparency Order prevents EF from communicating any material or information that discloses or is likely to disclose that she is JF’s mother and that JF has been the subject of court proceedings concerning her residence and care. The order carries a warning that breach of it may result in imprisonment.

My conclusions in relation to Practice Direction 4A above does not mean the ECHR and HRA are not relevant to this application. They are integral to determining the application.

Although EF recognises ‘one of the main purposes of the Transparency Order is to protect JF’s privacy’, EF relies on her own Article 10 rights. EF also argues that the order she seeks would further JF’s Article 8 rights. Although the Local Authority opposes the application, it recognises that Articles 8 and 10 are relevant to the application. The local authority’s position statement also refers to Article 12 rights, but that is an error. Similarly, the Official Solicitor approaches the case as a balancing exercise between EF’s Article 10 rights and JF’s Article 8 rights. In this balancing exercise, the Official Solicitor is considering the breach of JF’s Article 8 rights.

The relevant articles are:

“Article 8: 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.”

“Article 10: 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.”

It is agreed that

In addition, I accept EF’s submission that Section 12 of the HRA is engaged because the court is considering an application that will affect the exercise of the right to freedom of expression. EF cites Section 12(2) and 12(4), but I do not understand 12(2) it to take anything further. Section 12(2) provides:

If the person against whom the application for relief is made (“the respondent”) is neither present nor represented, no such relief is to be granted unless the court is satisfied—

I accept EF’s submission that Section 12(4) applies to this case. It provides:

The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to—

The first case the Applicant relies on is the Senior Judge’s decision of CS, AG v PS & Professor Celia Kitzinger [2024] EWCOP 6 in relation to balancing Article 8 and Article 10 rights. CS itself relied on Re S (A Child) (identification; Restrictions on Publication) [2005] 1 AC 593 and paragraph 17 of the judgment of Lord Steyn:

“First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each.”

However, after the judgment in Re S and CS, the Supreme Court gave judgment in Abbasi v Newcastle upon Tyne Hospitals NHS FT [2025] UKSC 15 and said this about balancing Article 8 and Article 10 rights at paragraphs 128 -130, relied on by EF

The application of the Convention

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, i.e. 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 v Germany (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: see, for example, Von Hannover v Germany (No 2) (2012) 55 EHRR 15, paras 109-113, Axel Springer AG v Germany, paras 90-95, and Couderc v France [2016] EMLR 19, para 93. 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: see Von Hannover v Germany (No 2), para 107, Axel Springer AG v Germany, para 88, and Couderc v France, para 92. 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.

Further, Mr Justice Poole gave his judgment in Carl Gardner Deceased, referred to above after the cases of Re S, Re CS and Abbasi.

In Re S, [2004] UKHL 47 the House of Lords was concerned with a very different factual matrix for considering a case where Article 8 and Article 10 were engaged and in conflict. In that case the appellant was the child brother of a deceased child whose mother was charged with murder of the deceased. The balancing exercise included consideration of the need for criminal proceedings to be subject to public scrutiny. The importance of Article 10 rights was emphasised within this context. In Re CS the Article 8 and Article 10 rights engaged were those of persons with a link to P. P himself was deceased. In Abbasi, the Article 8 rights asserted by the appellant NHS Trusts were in respect of clinicians who had been involved in the treatment of the deceased children. The court had made declarations in the substantive proceedings as to the lawfulness of withdrawing treatment. Again, Article 10 rights were emphasised. As can be seen from the case name, the case of Re Gardner (Deceased)(Duration of Transparency Order) [2025] EWCOP 34 (T3) also concerned a deceased P. The application for the transparency order to be discharged, and the opposition to that application, were both from persons surrounding P, not P himself. The transparency order was discharged.

Of the authorities referred to above, it is important to note the differences between the facts of those cases and the present case. It is difficult to see how Article 8 rights of P would ordinarily survive death. That is very different to this case where JF is a young woman whose own Article 8 rights are very much under consideration in this application. The authorities are helpful in the guidance they give on the approach to be adopted when considering Article 8 and 10 rights which appear in conflict. They do not give wider guidance on the outcome of this consideration as their factual matrix is so different to JF’s case.

EF relies on Poole J’s analysis at paragraph 34 of the Gardner judgment:

The claim for protection of Article 8 rights by a continuation of the Transparency order failed in the case of Gardner. It was not sought for P’s benefit, P was deceased and proceedings had concluded. (In his conclusions in the Gardner case, Poole J considers whether a transparency order should continue after P’s death and finds it should not in the great majority of cases (paragraph 42)). The issues in the Gardner case were of considerable public interest and importance (paragraph 41 (i)) and there was no interference with the Article 8 rights of members of Mr Gardner’s family sufficient to justify the continuation of the restrictions on the Article 10 right to freedom of expression that are imposed by the Transparency Order or any varied Transparency Order (paragraph 42).

In her conclusions in CS, Senior Judge Hilder considered factors to weigh in favour of discharging the Transparency Order at paragraph 19. The first factor the Senior Judge considered was that the case was of proper public interest. Secondly, P had died and had no continuing interest to protect, whereas it would be a significant intrusion into the rights of freedom of speech of the living to maintain the order. Thirdly, many of CS’ family (including his daughter) wanted to talk about their experiences. In the balancing exercise, the Senior Judge considered the submissions for continuing the Transparency Order, which were that the party objected to intrusion into her private life and had concerns about the accuracy of reporting and damage to her own standing. The Senior Judge was not convinced by those submissions, having taken into account the factors in favour of discharging the Transparency Order. In this ex tempore judgment, the fact that proceedings had concluded was not listed as a factor in the decision not to continue the Transparency Order.

I have started with the approach I read to be set out in paragraph 128 of the Abassi decision

The answer to this is yes. EF wants to be able to talk and publish freely about circumstances concerning her daughter JF, 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 JF, such that JF 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. From her witness statement, EF identifies 2 categories of people she wants to communicate with. The first is her own informal support network. EF says in her witness statement:

The second is a wider network of professionals and perhaps wider media, both to secure safeguarding concerns can be raised and to try and improve, through campaigning, an increase in suitable provision for complex cases such as JF, and an increased likelihood of more local suitable provision for complex cases such as JF. EF says in her witness statement

I do not accept that the Transparency Order would in any way prevent EF from raising any safeguarding concerns she had. She has raised them throughout the currency of the order to date and the Transparency Order expressly includes, as set out above at paragraph 9(i)(e), that the order does not prevent: “disclosing information for the purposes of caring for JF.”

However, I do accept that the Transparency Order interferes with EF’s article 10 rights. In short, she needs to be supported and she needs to be able to promote JF’s best interests.

I find that discharge of the Transparency Order would interfere with JF’s article 8 rights. 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 JF’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 [JF]’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 JF 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.

The Official Solicitor is concerned about the breach of JF’s Article 8 rights but cannot find a workable alternative to the Transparency Order which would suitably support EF’s Article 10 rights. I am not satisfied that is a reason to endorse the breach of JF’s Article 8 rights.

The legitimate aim in the breach of EF’s Article 10 rights is the prevention of the breach of JF’s Article 8 rights. It is said for JF that the Transparency Order breaches JF’s Article 8 rights. I am not able to accept that. EF says that she wishes to be able to express her views on safeguarding issues and matters going to JF’s health and welfare. As above, I find she can still continue to advocate for her daughter.

EF says that discharging the Transparency Order will protect JF’s article 8 rights as it will protect JF’s autonomy and her Article 8 rights and increase the chance that a placement will become available closer to EF’s home.

There is no evidence before me that this is the case. There is no evidence that the Local Authority will not continue to search for a placement closer to EF irrespective of whether the Transparency Order is discharged. It is not clear to me how JF’s autonomy would be respected if anybody is allowed to report on any of the highly personal, sensitive material relating to JF which was put before the court.

It is clear that freedom of expression is an important article right. I have identified the merits of the two categories of persons EF wants to communicate with. Discharge of the Transparency order may be to pursue a legitimate aim if it is necessary to achieve those meritorious aims.

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:

I note that the local authority agrees that any Transparency order should be limited in duration to during the lifetime of JF. 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 JF 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 JF 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, §20relied 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.

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.

In the order from May this year, the relevant paragraphs are at 4 to 8. EF acknowledges that the deprivation of JF’s liberty is still subject to court process and scrutiny, but says that the proceedings restart with the application for a review and are concluded until and unless such an application is made. Clearly the authorisation for a deprivation of liberty does not extend beyond the review period, but I am not clear that proceedings have concluded when a set time period has been articulated for them to be reviewed. Indeed, apart from the set time period of the review period, the court requires further application in the event of more restrictive care arrangements being introduced.

Certainly, the continuing requirement for the court to authorise JF’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. The paragraphs from the order in May are:

If a change (or changes) to the care arrangements that render them or one of them more restrictive has as a matter of urgent necessity been implemented, the applicant shall apply to the court for an urgent review of this order on the first available date after the implementation of any such change (or changes).

If a change (or changes) to the care arrangements that renders them or one of them more restrictive is proposed (but is not required as a matter of urgent necessity), the applicant shall apply to the court for a review of this order before any such change (or changes) is made.

In any event, the Applicant must make an application to the Court no less than one month before the expiry of the review period as defined below for a review of this Order if at that time the care and support plan still applies to JF. Such application shall be made in accordance with any Rules and Practice Directions in effect at the date of the application being filed.

Any review shall be conducted as a consideration of the papers unless any party requests an oral hearing or the Court decides that an oral Hearing is required.

“The review period” shall mean 12 months from the date on which this order was made or, if an application for review has been filed at Court before that date, until determination of such review application.”

I find it is a disproportionate breach of JF’s Article 8 rights to discharge the Transparency Order, even taking account of EF’s Article 10 rights. JF 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, JF’s the address would be known.

I have no information as to JF’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 JF 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 JF’s situation. They assist on the process to be followed and factors to be considered, but not on the decision I should reach. JF 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 JF’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 JF 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 JF 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 JF.

By way of postscript, the Official Solicitor made an oral application at the hearing in May to vary the Transparency Order, with the consent of EF and no objections from the Local Authority, however, there was no need for this application. The hearing was still subject to the Transparency Order and the judgment was not published. I stayed the relevant provision at the hearing of 23 October 2025. Given my judgment above, I formally set it aside now. The relevant provision was:

A draft judgment was embargoed and sent to counsel only for them to consider whether any administrative corrections were requested. Those requests were addressed at the handing down of judgment on 13 November 2025 and have now been included within this judgment. The embargo was relaxed only to enable counsel to take instructions for the hearing of 13 November 2025.