SB v PB: Appeal: Best interests: Restrictions on contact in a care home

This is an appeal from a decision made by District Judge Helen Jackson (“the DJ”) sitting as a nominated judge of the Court of Protection at Tier 1 on 23 January 2026, whereby she determined that it was in PB’s best interests to remain at the care home, and that contact between her and her daughter, SB, should continue to be supervised and limited.

The DJ refused SB’s application for permission to appeal, and the matter was referred to me on renewal. I directed an oral hearing in which both permission and the substantive appeal would be determined.

That hearing took place on 20 April 2026. The case raised one particular issue, namely the restriction by the care home of contact between PB and SB which I decided I needed to think about after the hearing, for reasons that will become obvious. This is an important issue in itself, but it is also significant in the context of this appeal because contact is an essential part of the overall best interests evaluation in this case.

I am grateful to counsel for their written and oral submissions.

Since this judgment is to be published on the National Archive, I have adopted the following anonymisation to ensure PB’s privacy. PB is the person concerned in this case and SB is her daughter. I have called the care home just that rather than give its full name. The agency that has provided domiciliary care to PB will be called “the agency”.

There are good transparency reasons for the care home and perhaps the agency to be identified. However, to do so would lead to the identification of PB, which I want to avoid. It would also be unfair to do so without having heard from the care home or the agency on the issue, which I have not. It would also likely jeopardise PB’s placement at the care home.

There are no good reasons for the local authority not to be identified. I will, of course, consider any representations from the parties or others if there is disagreement with my approach here.

As an appeal, this is not a rehearing of the welfare decision. The task for this court is to determine whether the judge at first instance erred in law, misdirected herself as to the applicable legal principles, or reached a conclusion which was outside the generous ambit of reasonable decisions open to her. It is not for me to replace the DJ’s decision with my own if I would have reached a different decision had I heard the case at first instance. If I do find that the DJ did err in law (etc), then I could replace her decision with my own. In fact, at the end of the appeal hearing, it was the unanimous view of the parties that if do allow the appeal then the case should be remitted for rehearing to another judge at Tier 1.

I would add, there was an application to adduce new evidence of what has happened since the appeal was heard. It was evidence of the restricted and, as SB would allege, hazardous nature of the regime in the care home for PB as it now is. There was no objection to me reading the evidence, which I did and I will comment on it below.

It seems to me that this is an application about events that have happened since the original judgment, rather than the emergence of facts that were not known at the time. In Court of Protection appeals, the rule in Ladd v Marshall [1954] 1 WLR 1489 as refined by the then Vice President of the Court of Protection, Mr Justice Hayden in MC & AC v A CCG & DC [2022] EWCOP 20 applies. This Appeal Court has powers under COPR 2017 20.13 and 20.14 that are wide and flexible, which is appropriate to this jurisdiction. It is clear that if evidence comes to light that changes the overall scenario of the case and brings into question the decisions made by the original judge, even where that judge made the right decision on the evidence before them at the time, this Court has the power and obligation to act. That is likely to be by directing either further evidence and/or a hearing, as Hayden, J. did in MC.

For the reasons I shall now give, I have decided that the DJ did not err in law, misdirect herself or reach an unsustainable decision. I will therefore dismiss this appeal.

The background to this case can be summarised reasonably briefly.

PB is a lady in her late 80s. Until less than a year ago, she lived in her own home with her daughter, SB, with the support of care agencies. PB has a long standing and undisputed diagnosis of both Parkinson’s disease and Alzheimer’s. Although there has been some issue with the way the statutory test for incapacity was applied in PB’s case, there was no dispute before the DJ, and certainly not before this Court as to whether she lacked the relevant mental capacity for decisions around residence and care.

The history leading to these proceedings is properly summarised in the Local Authority’s position statement for the hearing before the DJ, as follows:

Pausing there, the foregoing history is not unusual in Court of Protection cases. There are often fallings out between professional care givers and the families of those to whom they provide care, both in the setting of their own home, or in the institutional setting of a care home. Sometimes these are the almost inevitable result of differences of opinion as to what sort of care P should receive. Sometimes it is to do with concerns on the part of P’s family as to the standard of care P is being provided by the care giver. Sometimes there are serious problems that arise out of the behaviour of one party or another.

In most cases, the relationship continues, and the care giver and the family simply learn to cooperate and place the interests of P above their own. Sometimes, however, that proves impossible and the relationship breaks down. When care is provided in P’s home, this results in the care giver withdrawing. When the care is provided in a residential setting operated by the care giver, it can result either in restrictions on, or the total suspension of, visits by P’s family members or friends, or at least some of them. Sometimes, the management of the home simply gives notice to P that they will have to leave the home and find somewhere else.

That last option can be highly disruptive for P, and it can result in it being very difficult, maybe even impossible to find any appropriate alternative provision. When one is found, it may be inconveniently far away for the family or for P. It may be more expensive, perhaps prohibitively so. The history of rancour oftens follows P and can lead to the new care provider imposing restrictions on the family as a condition precedent for P’s residence at the new home. This is a difficult situation for the families, the providers, the public authorities with responsibility for P’s care, and for P, whose interests are often adversely affected by all this.

It is also a great problem for the Court of Protection. As I will explain later, the Court’s limited legal powers over care providers often leaves it in the position the DJ found herself in this case. Any power the Court has over the care provider to modify their approach towards P, for instance by imposing conditions on a standard authorisation, must be used sparingly if, by their use, all that happens is that the “nuclear option” of the termination of the placement will ensue.

In this case, both these issues feature. Not only had there been a breakdown in agency provision whilst PB was at home, but there were restrictions on SB’s visits at the care home, along with the threat that termination would follow any attempts to interfere with the home’s exercising of its powers over contact.

This is an important issue in this case because it has a direct impact on PB’s best interests in two interrelated ways. Firstly, PB and SB are close, and it maybe in PB’s best interests for her to have extensive contact, as and when she wishes, with her daughter. Or, to put it another way, it may upset her and injure her best interests for that contact to be restricted. Secondly, however, the breakdown in relations between the caregivers and SB is also relevant to PB’s best interests. That is because it makes her tenure at the care home less secure, for the reasons I have already explained.

In this case, there was clearly an issue as to whether the Court had to make any findings as to what had caused the undoubted breakdowns in the provision of care by agencies at PB’s home in the past. The DJ decided that a fact finding hearing was not required. That means that her decisions on the welfare issues were not based on any resolution of the disputes that obviously existed between the parties as to SB’s conduct or that of agencies or the care home. I shall return to this subject later.

There was no argument as to whether there should be a fact-finding hearing in January. Had such a hearing been directed it would have considered SB’s conduct and whether she does in fact constitute a threat to her mother’s safety either directly because of her approach to her mother’s care, or indirectly because of her conduct towards those who are otherwise entrusted with her mother’s care.

The judge took what is a perfectly understandable and reasonable approach not to engage in such a fact-finding exercise. I note that at the final hearing she had before her “4 lever arch files of position statements, applications, witness statements, standard authorisation papers, a DST and care records..” all of which she had read (see paragraph [32] of the judgment).

I think it is clear that the DJ decided a fact-finding hearing concerned with the history of SB’s relations with care providers over a period of years, and at the present care home would have involved a considerable amount of court time. That is not always the end of the story. Sometimes there is a need for a prolonged fact finding, where, for instance, neglect or abuse are live and decisive issues in the case. However, that is only when the outcome of the fact finding will have an impact on the decision the Court has to make. This is similar to the position in the Family Court. It is a matter best determined by the judge with management of the case applying the principles enunciated by Mr Justice McFarlane (as he then was) in A County Council v DP [2005] EWHC 1593 (usually referred to as the Oxfordshire case) and most recently G (a child: scope of fact finding) [2025] EWCA Civ 1044 and as distilled into the issues before the Court of Protection by Re H-D-H [2021] EWCA Civ 1912.

There are no grounds to criticise the DJ for not carrying out a fact finding hearing in this case.

However, on behalf of SB, it has been argued that in the absence of such a fact finding the Court was obliged to make no assumptions about whether SB was properly criticised for her conduct in the past and the present. I cannot see that the judge did so. Instead, she took as fact that there had been a number of different providers in the past whilst PB lived at home. She also took as a fact that there had been difficulties whilst PB lived at the care home, leading to actions being taken by the care home. For reasons I elaborate on below it was proper and certainly within the proper scope of her judicial powers to consider this a case where the Court had to look forward to PB’s interests in the future rather than to the past.

The principal challenge concerns the judge’s reliance upon the Decision Support Tool (“DST”) assessment completed shortly before the final hearing. It is correct, as SB submits, that the DST is designed primarily to inform decisions about NHS funding rather than determining where care should be delivered.

However, the judge did not treat the DST as determinative. She was entitled to have regard to it as part of the overall evidential landscape, alongside social work, nursing and occupational therapy evidence. She heard evidence from the social worker, and she was comprehensively cross examined on the points made by SB. The criticism that the court impermissibly substituted an administrative funding tool for a welfare judgment is not borne out by a fair reading of the judgment as a whole.

The judge identified as a “magnetic factor” the need for 24-hour nursing care, particularly overnight, and the absence of any realistic proposal to meet those needs safely in the community. While the language of magnetism must always be used with care, it does not follow that the judge adopted a mechanistic or linear approach. Rather, she identified a feature of the case which legitimately carried particular weight.

The judge went on to consider other relevant matters under section 4 of the Mental Capacity Act 2005, including PB’s past wishes and feelings, her relationship with SB, and the desirability of a less restrictive option. She was also entitled to take into account the fragility and historical instability of domiciliary care arrangements.

Paragraph 62 of the detailed judgment deals with these matters clearly:

In my judgment, the conclusion that a return home was risky, and would leave PB’s health at risk was one plainly open to the judge on the evidence before her. No error of law or principle is demonstrated in her reaching that conclusion.

It is important to be clear that the judge did not treat the care needs as determinative of her decision. She said at paragraph [61] and [62]:

The DJ then went on to “factor the contact issue into [her] decision regarding residence and care” (see paragraph [68]). She reached the conclusion that it is “proportionate at this stage given it is the only option to limit contact to 2 hours supervised per week otherwise PB will lose her placement at the home. I would urge SB to abide by a schedule of expectations to avoid difficulties arising, but it needs to be very clear, so all parties know what is expected of them”.

The issues relating to contact require careful consideration. Restrictions on contact between a vulnerable adult and close family members, plainly engage Article 8 of the European Convention on Human Rights (ECHR), and the court, as a public authority itself, must ensure that any interference is necessary and proportionate.

It was also argued, both at first instance and before me, that the care home is subject to s. 73(1) and (2) of the Care Act 2014. This is correct, and it means they are performing a public function as per s.6(3)(b) of Human Rights Act 1998. What that means is that they are obliged to comply with Article 8 of the European Convention, namely ensuring that any interferences with a resident’s right to private and family life only happens when necessary and proportionate.

I would add that there is a specific provision added to the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, following the Covid pandemic, during which contact with care home residents generally was all but prohibited. Although this was not raised before the DJ, I raised the issue in the appeal hearing and sought and received submissions on the subject.

Regulation 9A of those Regulations provides:

In a case where the resident lacks capacity to consent to visits, as here, a decision as to the happening or not happening of contact must be taken in their best interests (see (4)(a)(ii)).

The importance of these regulations is that a registered person, such as the managers of the care home, must comply with them in carrying out a regulated activity, i.e. running the care home (see Regulation 8). A failure to do so leaves the care home and its managers open to regulatory action by the regulator, the Care Quality Commission (CQC). This could lead to sanctions, and even the cancellation of their registration and the likely closure of the home.

In other words, there is an incentive for those who operate care homes to ensure they enable their residents to receive visits at the home, and to leave the home in order to pay visits. A failure to do so is a serious matter, with perilous consequences.

However, the wording of Regulation 9A, along with the general obligation under Article 8 (via s. 73 Care Act) is necessarily subject to qualifications. So, although the wording in Regulation 9A(2) provides that those staying in care homes “must be facilitated to receive visits” unless there are “exceptional circumstances”, paragraph (3), whilst purporting not to limit that right, immediately qualifies it. The visits must be “received in a way that is appropriate”. That visit must meet “the service user’s needs” and “so far as reasonably practicable, reflect their preferences” (All emphasis added). Each of the emphasised provisions requires a judgment on the part of the service provider, having first consulted with the relevant parties.

Then comes another significant provision (my emphasis, once again). In order to comply with the provision enabling visits, the care home owner must take action, “or put in place such precautions, as is necessary and proportionate to ensure that service users may receive visits to be accompanied safely”. In determining those “precautions” regard must be given to any care or treatment plan for the service user”.

What happened in this case is not only typical of relationship breakdown between families and care providers, but also how Regulation 9A is used in such situations. Without going into detail, there were a number of allegations of incidents involving SB at the care home. These culminated in a letter on 26 November 2025. I will repeat the letter verbatim (literally), not just so as to underline its relevance to this case, but to emphasise its relative normality in this context. It said:

It is to be noted that the care home appears to have taken legal advice and had decided to take safeguarding action by reporting the matters complained of to the CQC. What this led to was initially a Schedule of Understanding about SB’s expected behaviour and to a reduction and limitation in PB receiving visits from her daughter (two per week). It is important to make very clear that SB denied the allegations complained of and continues to do so.

SB submits that the judge impermissibly allowed the care home’s position to dictate the outcome of the case and failed to conduct a structured proportionality analysis, particularly in light of Section 73 of the Care Act 2014 and the care home’s status as a public authority for Human Rights Act purposes.

This is a serious issue for the Court of Protection as well as public authorities responsible for those who reside in residential care. Care homes are almost invariably private, i.e. they are owned and operated by private companies or individuals. Their residents occupy their places pursuant to contractual arrangements between them, or those contracting on their behalf, and the operators of the home. That means the operator has the right to terminate those contractual arrangements in circumstances that may vary from home to home, and subject to differing provisions in contracts. For instance, the residents must pay fees, and if they do not they can have their occupation terminated. Equally, if residents or their families are disruptive to care home staff or other residents, the owners of the care home may act against them. This may involve excluding family members altogether or restricting and supervising contact.

What protections do residents in care homes have against the use of the threat of eviction, and the imposition of restrictions on visits by family members to regulate either their own behaviour or that of their family visitors? As with anyone residing in a place that is their home, there are legal protections of care home residents against summary, improper or inappropriate eviction under the Protection from Eviction Act 1977. As I have said, non-payment of fees (i.e. rent + cost of care) is one. Another would be where the home is no longer able to provide the resident with adequate care. Another is where the resident is causing damage or harm to care staff or other residents. If their family are doing something similar, then that may constitute a good reason for giving notice and obtaining a court order, from the county court, not the Court of Protection.

It seems to me that if the allegations against SB were sustained, then they would probably place PB at great risk of being evicted from the care home. For the same reason, the alternative option, namely reducing her visits to PB and regulating what she does whilst visiting would be viewed as reasonable and proportionate reaction to such behaviour, particularly if the care home went through a proper process of evaluation as required by Regulation 9A.

The problem for the resident, her family, the LA and the Court of Protection is that the care home retains the ultimate power to terminate the resident’s occupation of the care home. That is an issue at the back of the minds of all public authorities in these sorts of cases. It is also a critical consideration for the Court of Protection when dealing with cases of this sort.

The Appellant’s main criticisms of the DJ’s approach to this case can be summarised as follows. There was no analysis as to what level of contact with SB was in PB’s best interests. There was no analysis of whether supervised contact was necessary. There was no adequate analysis as to whether the care home’s requirements were compatible with PB or SB’s Article 8 rights.

It is my judgment that, on this point, the DJ did consider these issues. She did this by considering whether the loss of her place in the care home was more serious for PB than a reduction in her contact with her daughter. This is clear from her judgment. She decided that it was.

This case illustrates a recurring difficulty in Court of Protection proceedings, which is not always made explicit when welfare decisions are considered on a case-by-case basis. It concerns the interaction between the limits of the court’s welfare jurisdiction, the contractual and regulatory position of private care home providers, and the practical consequences for decisions about residence and contact.

It is now well established that, when determining best interests under the Mental Capacity Act 2005, the Court of Protection must choose only between options that are legally and practically available. The court does not have a free-standing power to require public authorities, or private providers, to create services, placements or arrangements that do not exist or which they are unwilling to offer. That principle was authoritatively confirmed by the Supreme Court in N v ACCG [2017] UKSC 22 and has since been consistently applied in cases where the range of options is narrow or severely constrained.

That principle does not reflect judicial passivity. It reflects the legal limits of the court’s welfare jurisdiction. Dissatisfaction with the options that are in fact available to P may, in an appropriate case, give rise to public-law or regulatory challenge. It does not entitle this court to distort the welfare evaluation by treating unavailable options as if they were realistic contenders.

The point assumes particular significance where, as here, the court is faced in substance with a binary choice: either maintaining a single existing placement or risking its loss in circumstances where no alternative satisfactory placement has been identified or secured. In such cases the court is entitled, and in my judgment often required, to give decisive weight to the preservation of a stable placement, even where that stability is accompanied by restrictions that engage Article 8 rights.

That approach does not involve subordinating P’s welfare to institutional convenience. It reflects the reality that the maintenance of stability is itself a core welfare consideration, and that the loss of a placement may have consequences which are materially more harmful than the continuation, for the time being, of arrangements which are less than ideal.

The analysis cannot, however, stop there. Care homes are, almost invariably, privately owned and operated pursuant to contractual arrangements. Those arrangements ordinarily confer on the provider a right to terminate the resident’s occupation in defined circumstances. The Court of Protection has no jurisdiction to rewrite those contracts, nor to prevent a lawful termination pursued through the county court.

At the same time, care home providers performing regulated activities do not operate in a purely private sphere. By virtue of section 73 of the Care Act 2014, they are to be treated as public authorities for the purposes of section 6 of the Human Rights Act 1998. Restrictions on contact between a resident and her family therefore engage Article 8 of the Convention.

In addition, Regulation 9A of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 imposes a positive obligation on providers, save in exceptional circumstances, to facilitate visits and to adopt the least restrictive measures that are necessary and proportionate to address identified risks. Compliance with that obligation is a matter subject to regulatory oversight by the Care Quality Commission.

A failure to comply with those obligations may expose a provider to regulatory action, including warning notices, conditions on registration and, in serious cases, suspension or cancellation of registration. The imposition of restrictions on contact, or the use of the threat of eviction as a means of regulating the behaviour of family members, may therefore have significant regulatory consequences.

However, regulatory accountability does not equate to immediate unavailability of the placement. Unless and until regulatory action is taken, the placement remains either available or withdrawn as a matter of practical fact. The Court of Protection cannot assume future enforcement, nor can it compel a provider to continue a placement against its will on the basis that the regulator might intervene.

The court is therefore required to decide the case before it on the basis of present realities. In doing so, it is entitled to take into account evidence that insisting upon greater or differently-structured contact, contrary to the provider’s stated position, would be likely to precipitate termination of the placement altogether.

That does not involve an abdication of the court’s responsibility to scrutinise the proportionality of contact restrictions. Rather, it reflects an acknowledgement that the welfare jurisdiction operates within a wider legal and practical framework over which the court does not have direct control.

Nor does it render contact arrangements static or immune from future challenge. The court’s tolerance of restrictive arrangements in circumstances of constrained choice is necessarily fact-sensitive and time-limited. Any diminution of contact beyond that authorised by the court, or any failure by the local authority to keep contact arrangements under active and meaningful review, would require careful scrutiny in future proceedings.

Equally, any material change in circumstances, whether a shift in the provider’s position, the emergence of a realistic alternative placement, or the taking of regulatory action, may require the welfare balance to be revisited.

I do not accept that the judge abdicated her responsibility. She was clearly troubled by the limitations on contact and expressly encouraged the local authority to work towards increasing it, potentially with third-party supervision. She weighed the interference with family life against the real risk that imposing greater contact against the provider’s position could destabilise PB’s only available placement.

The District Judge did not disregard the Article 8 obligations. She was faced with evidence that, unless contact was restricted and supervised, the care home was likely to terminate PB’s placement. The judge was entitled to treat that risk as real, whether or not the allegations underpinning it were disputed.

In those circumstances, the judge was required to choose between legally and practically available options. The Court of Protection has no power to compel a private provider to continue a placement against its will, nor to rewrite contractual arrangements. That limitation is well established.

The judge balanced:

While the proportionality analysis could have been more fully articulated, it is apparent from the judgment read as a whole that the correct approach was applied. The restriction on contact was not treated as an end in itself, but as a contingent and time-limited measure adopted to preserve PB’s residential stability. This Court will not intervene simply because a judgment might have been expressed differently. The question is whether the outcome was one the judge was entitled to reach.

In the circumstances of this case, where no alternative placement was available and the court was faced with a binary choice, I am satisfied that the judge was entitled to conclude that the maintenance of a stable placement was, for the time being, in PB’s best interests, even at the cost of restricted contact.

That said, I emphasise that contact arrangements are not static. Section 21A reviews require ongoing vigilance. Any diminution of contact beyond that authorised by the court, or any failure by the local authority to keep contact under active review, would require careful scrutiny in future proceedings.

Post-hearing material was placed before this court describing subsequent events at the care home. Although this material was admitted and read, it relates to circumstances arising after the decision under appeal.

The updated statement from SB, submitted to this court as part of this appeal, raises concerns in respect of allegations of continued inadequate care and a failure of the LA to investigate those concerns.

However, I do not consider there is anything this could should do at this stage to seek further evidence or hold a further hearing. The s.21A proceedings are at an end. The workings of the standard authorisation process under Schedule A1 of the MCA (the so called DOLS) must do their job.

Due to the importance of the issue raised, I have granted permission to appeal. However, and for the reasons I have given above, I do not consider the judge made any errors of law, nor that she reached a decision she was not properly able to reach.The appeal is therefore dismissed.

I would, however, strongly encourage the local authority and the care provider to continue exploring ways of facilitating meaningful and dignified contact between PB and SB, consistent with PB’s welfare and safety.

That is the judgment.