Personal welfare deputyship cases are like buses – you wait ages, and then three come along all at once. After a period when, at least on the surface, we thought that the parameters of the appointment of personal welfare deputyship had been clearly delineated by the former Vice-President, Hayden J, in Lawson and Mottram, the decision of Poole J in Parr at the start of 2026 threw matters into the air. Purporting to apply Lawson and Mottram, Poole J took an approach that was (arguably) driven by pragmatism as opposed to the statutory framework of the MCA 2005. In Re XY [2025] EWCOP 55 (T2), a case which was handed down after Parr (at least according to the citation), but which did not refer to, Senior Judge Hilder – construing the authority of personal welfare deputies – took an approach much closer to Lawson and Mottram.
We now have the decision of HHJ Beckley in Re HDEB [2026] EWCOP 12.
The case concerned whether the parents of a 22 year old man, HDEB, should be appointed his personal welfare deputies. HHJ Beckley was at pains to identify that “no parents could have done more for their child than JB and SB have done for HDEB. He is fortunate to have JB and SB as his parents and to receive their love and support” (paragraph 2). HHJ Beckley had initially refused their application to be made HDEB’s personal welfare deputies on the papers; his reconsideration at an oral hearing took place after, and took account of Parr.
No doubt very conscious of the fact that Poole J in Parr had identified that he had cases before him in which the collaborative decision-making structure provided for under the MCA 2005 did not work, HHJ Beckley set out his stall thus:
17. My starting point is HDEB’s right to respect for his autonomy. He is a 22-year-old man; it has been more than 4 years since JB and SB held parental responsibility for him. HDEB’s disabilities may mean that he is less able to exercise his autonomy than a non-disabled person, but that does not mean that his right to autonomy should be any less jealously guarded. As Hayden J stated at [53b] of Lawson, Mottram and Hopton, ‘The young person who may lack capacity in key areas of decision making remains every bit as entitled to this respect as his capacitous coeval.’
18. Sections 4 and 5 of the Act envisage a system of collaborative and informal decision-making. JB and SB are people whose views must be taken into account by any person making a best interests decision on HDEB’s behalf (section 4(7) MCA). They are engaged in caring for him and interested in his welfare (section 4(7)(b)); they are also property and affairs deputies appointed by the court (section 4(7)(d)). It seems to me virtually impossible that any best interests decision make could claim that it is not practicable and appropriate to consult JB and SB given their love for and knowledge of HDEB and the fact that they have twice moved house to be close to where he is living.
19. As an experienced Court of Protection judge, I recognise that the system of collaborative decision-making envisaged by sections 4 and 5 of the MCA does not always run as the statue intends. It is for this reason that I ordered JB and SB to file a second witness statement as set out at a paragraph 9) above.
That witness statement set out the difficulties that HDEB’s parents had had in dealing with statutory bodies. However,
25. In my view, the examples given by JB and SB demonstrate how collaborative decision-making can work and has worked in HDEB’s best interests. Often it isn’t simple and straightforward, but when decision makers have taken JB and SB’s views into account (as section 4 MCA says they must), along with their own professional knowledge and experience the right decisions appears to have been made.
26. JB and SB seek authority to make day to day decisions including as to diet, dress, leisure and social activities. As I suggested to JB and SB in the hearing, that cannot be practical. The person at BC who is deciding whether HDEB should wear his big coat or a light jacket, eat a curry or a jacket potato or watch the TV or walk outside (assuming for this judgement that HDEB lacks capacity to make those decisions himself) cannot realistically be expected to contact JB and SB who, if they were PWDs, would have the authority to make those decisions on HDEB’s behalf. In my view, those ongoing, day to day decisions are ones that Parliament intended to be made with the protection of section 5 MCA.
27. JB and SB accept that they would only be able to choose between available options offered by statutory bodies. PWDs, like Court of Protection judges, cannot compel a statutory body to create or, in particular, pay for a favoured option. JB and SB submit that as PWDs they would be able to lead on the process of decision making and gather information. They describe instances of a complete absence of discussion or planning before decisions have to be made. I am afraid that I don’t consider that the appointment of PWDs would overcome such difficulties which commonly arise because of the very great pressures on statutory bodies.
28. It seems that HDEB may have to move on from BC in July 2026 when his current placement comes to an end. This is obviously an issue of great concern for JB and SB. They are concerned that the local authority isn’t taking the necessary active steps to source available options, which could perhaps include an extension of HDEB’s stay at BC. It is the decision as to where HDEB should live, deciding between available options, that they consider to be the most important decision that they would and should be able to make as PWD.
29. A number of scenarios could develop. SB and JB and the local authority may agree on which available option is in HDEB’s best interests. In that case the collaborative decision making envisaged by sections 4 and 5 MCA will be relatively straightforward. Secondly, the local authority could be neutral between 2 options, but when having taken into account the views of SB and JB agrees with SB and JB as to which is the option that is in HDEB’s best interests. The third option is that the local authority presents available options but there is disagreement between SB and JB on the one hand and the local authority on the other as to which is in HDEB’s best interests. In that situation, SB and JB consider that the decision should be theirs as PWDs. I am afraid that I disagree with them. If there is such a disagreement in relation to a decision as important as residence, then section 16 (4) (a) says that a decision of the court is to be preferred to the appointment of PWDs to make the decision.
30. I note that a transitions officer at PC, the Chief Executive Officer of an autism charity and HDEB’s aunt all actively support JB and SB’s application. I also note that the local authority does not oppose it. In my judgment, those are all persons whose views I should take into account when making this decision, and I do so. Their views, however, are not determinative of my decision.
HHJ Beckley therefore declined to make the appointment, recognising how disappointing it would be for JB and SB, but
31. […] I do not find it to be in HDEB’s best interests to appoint JB and SB as PWDs for HDEB. I find that collaborative decision making has worked in his best interests. I consider that if there are disagreements over major decisions, such as residence, the Court of Protection should resolve those disagreements rather than PWDs. I consider that the appointment of PWDs would be an unnecessary infringement of HDEB’s right to autonomy as a 22-year-old adult.
[…]
33. I recognise that HDEB will not just require a one-off decision, but a series of ongoing decisions. It seems to me that those ongoing decisions should be made collaboratively rather than by PWDs.
34. I am clear that there is no presumption against the appointment of PWDs, as Mr Justice Hayden made clear. However, I do not find that it is in HDEB’s best interests to have PWDs making welfare decisions on his behalf.
Importantly, HHJ Beckley identified that:
35. I recognise that I have come to a different decision in this case than Mr Justice Poole did in Parr , despite the circumstances of HDEB, JB and SB having similarities to that of Ruby and Alison Parr. I do, therefore, grant permission to JB and SB to appeal to a Tier 3 judge if they wish to do so.
Comment
If there is to be an appeal, I very much hope that it can be leapfrogged to the Court of Appeal, because otherwise we will have another Tier 3 decision which will not be able to provide binding guidance for the (vast majority) of decisions which are made at Tier 1 or Tier 2 level, as it will be simply another (potentially inconsistent decision. For what it is worth, and entirely understanding the pragmatism of Poole J in Parr, his judgment is one which arguably downplays the importance of s.5 MCA 2005 in the statutory framework, and – more importantly – serves as a counsel of despair. The answer to public bodies not operating in a collaborative fashion with those interested in P’s welfare is not to make those people deputies – it is to get the public bodies actually to understand and operate the MCA 2005. This is not just purism, it is also on the basis that a public body which does not understand and operate the MCA 2005 properly via-a-vis someone lucky enough to have a person who is willing to fight their corner through seeking to be appointed a personal welfare deputy is very likely not to be understanding and operating it in relation to those who do have not such champions.
