The issue of visiting in care homes is a distinctly hot topic at the time of writing (May 2026). Linked, it appears, to high profile media coverage, DHSC has announced a review of Regulation 9A of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, itself introduced in England in the wake of the pandemic. Regulation 9A does not, however, apply to judges making decisions in the Court of Protection. The media coverage noted above was focused primarily on the role of the Court of Protection. Whilst it does not expressly refer to that coverage, it does not require too much reading between the lines to see the careful and comprehensive judgment of HHJ Burrows in Re PB (Appeal: Best Interests: Restrictions on Contact in a Care Home) [2026] EWCOP 21 (T2) as drafted, in part, to explain why the Court of Protection takes the approach that it does.
The case itself took the form of an appeal against a decision of a district judge that it was in the best interests of a lady in her late 80s, PB, to remain at the care home, and that contact between her and her daughter, SB, should continue to be supervised and limited. As HHJ Burrows noted:
14. The history leading to these proceedings is properly summarised in the Local Authority’s position statement for the hearing before the DJ, as follows:
(9) PB bought the property she lives in with her late husband and it is understood that PB is the sole beneficiary and owner of the property. SB is believed to have moved into the property with PB in November 2017.
(10). The local authority had previously commissioned the agency to provide a package of care three times per day to PB in her home and the agency had been providing this care for [around] two years; prior to that, eight different care agencies had [been] commissioned but then ceased involvement, citing issues in the working relationship with SB.
(11). The court will note the exhibits provided from the previous care provider, the agency, which detail incidents and difficulties in work conditions allegedly due to SB’s behaviour over a near two year period. No one has sought for the previous provider to give evidence; nor is it considered necessary for the court to determine the detail of what went on prior to PB’s move to the care home. It is an accepted fact that the relationship with the agency became difficult, but SB’s case is that the agency remain willing to resume the care package and that she will work with them. She has provided evidence from the agency, most recently in November 2025, confirming that they would resume the package.
15. 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.
16. 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.
17. 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.
18. 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.
As HHJ Burrows identified:
19. 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.
20. 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.
On the facts of the case (but, again, not unusually) the question of whether it was necessary to hold a fact-finding hearing to identify the cause of the breakdown arose. The district judge had considered that it was not necessary, a decision HHJ Burrows entirely agreed with:
24. 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.
HHJ Burrows further concluded that the judge had been entitled to proceed on the basis that this was a situation where the court had to look forward, rather than backwards. He also concluded that she had not placed determinative reliance on a Decision Support Tool assessment (designed to inform decisions about CHC funding) in reaching her conclusions as to PB’s care needs, and, overall, that her decision about PB’s best interests as regards her continued residence in the care home was one she was entitled to reach.
HHJ Burrows then turned to the question of contact, identifying that “[r]estrictions 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.” He accepted the contention that the care home was to be seen (via ss.73(1) and (2) Care Act 2014) as performing functions of a public nature, so as to be bound, directly, by the ECHR. He then turned to the operation of Regulation 9A (a matter he had raised of his own motion before the parties), identifying that
40. 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.
41. 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.
42. 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.
43. 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”.
HHJ Burrows then set out what happened in PB’s case, noting that it was:
44. […] 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:
Following yesterdays incidents with SB, at the home and after careful consideration of SB ongoing challenging , and detrimental behaviours towards PB, staff, residents, and relatives within the home. e.g.
1. Affecting staff morale, and their mental health, due to being rude, condescending, doesn’t listen to staff, talks over staff, or walks away from staff whilst they are talking to her, also interrupts staff, and disrupts care by trying to tell staff how to do their jobs by telephone and in person, or threatens them with solicitors, the staff are afraid of SB and this impacts on PB, other residents, staff, and visitors who witness her behaviour’s.
2. Has demonstrated with yesterdays 2 incidents that she has put PB at a high risk of harm due to bringing food into the home for PB from an unknown source, modification, quantity, how has this been stored, when / where cooked purchased from? Which makes this food untraceable in the event of salmonella etc. SB knows as discussed in the schedule of expectations that she should not be here at mealtimes, and that the care home provides meals for PB in line with SALT assessment and guidelines for PB, due to high choke risk, and noncompliance with recommended IDDSI levels which are prescribed by SALT on assessment. SB has had a copy of the assessment from SALT, and the care home, and SALT team and I have discussed this in great depth With SB on many occasions. SB is not permitted to feed her mum due to the above, also SB refused to tell staff what she had fed/how much to PB so staff were unable to record PB intake at teatime yesterday.
SB also put her mum at high risk by tampering with and repositioning PB bed leaving her in a flat position which is a choke risk, despite the maintenance team at the home asking SB not to touch the bed as the hand Set wasn’t working properly, and he left the room to get a replacement, when he arrived back SB had put the bed up to the highest position of the headboard and in doing so damaged the bed, and bent the frame.
This resulted in PB spending a long period out of bed in a chair whilst a replacement bed and mattress could be built/ set up and the other bed and mattress removed, compromising PB pressure relief and distressing PB.
Also, staff were away from caring for PB and other residents due to having to source/dismantle and rebuild the bed and set up the mattress, also resulted in staff not getting off shift on time due to this situation.
The business owners and management team must consider the wellbeing and safety of all residents and staff first and foremost, managing SB behaviours is no longer sustainable, especially as we approach the festive period which SB has already delayed the home in decorating the home for Christmas due to yesterday’s incidents. Therefore we have only 2 choices available to us,
1. We serve PB 4 weeks’ notice to leave the home as per contract, or
2. We take legal advice about barring SB from the home completely. The home feels the 2nd option would better serve PB, staff, and residents, and we are currently awaiting a call back from the care homes legal team.
As soon as I have an update, I will notify you of the decision. I’m sorry we have had to come to this, but we feel all other avenues have been taken and failed.
In an important passage, subtitled “Choice, Regulation and the limits of the Court’s Power,” HHJ Burrows set out how:
53. 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.
54. 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.
55. 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.
56. 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.
57. 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.
58. 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.
59. 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.
60. 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.
61. 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.
62. 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.
63. 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.
64. 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.
65. 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.
66. 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.
Applying that approach, HHJ Burrows found that the district judge was entitled to reach the conclusion that she did:
67. 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.
68. 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.
69. 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.
70. The judge balanced:
-
- the importance of contact between PB and SB;
- the interference with family life occasioned by supervision and limitation; and
- the materially greater harm that would likely result from the sudden loss of PB’s only available placement.
71. 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.
72. 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.
73. 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.
HHJ Burrows therefore granted permission – given the importance of the issue raised – but refused the appeal, although “strongly enourag[ing] 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.”
Comment
As set out at the outset, this decision serves as a very useful primer for those who are wanting to understand how and why the Court of Protection considers questions of contact in the care home context – and, in particular, the (distinctly depressing) extent to which it can find itself navigating a set of very constrained options, especially where private providers are involved. A ‘full-spectrum’ response to the issues raised in the media coverage[1] would therefore – ironically – have to include giving the Court of Protection more power.
Two further points arise.
The first is that HHJ Burrows was undoubtedly correct to find that the care home was bound by the Human Rights Act 1998 on the facts of PB’s case by operation of s.73 Care Act 2014, as her care was (it appears) commissioned by the local authority. However, situation is not so straightforward in the case of a ‘self-funder’ or (bizarrely) if the care is commissioned by the NHS: see pages 26ff of the (2022) report of the Joint Committee on Human Rights on Protecting Human Rights in Care Settings. Any challenge based upon the ECHR could not, at that point, be brought against the care provider themselves, but would rather have to go round the houses against (in a case such as this) the local authority for failing to discharge the positive obligations owed by the State to secure respect for the ECHR rights of PB (and SB).[2] This gap has been (very) partially closed by the recent amendments to the Mental Health Act 1983 in the context of s.117 aftercare and NHS commissioned mental health placements in private hospitals. Many might think it is high time that it was closed altogether.
The second is that, whilst it is clear that the application before the court arose via s.21A MCA 2005, such that there must have been a DoLS authorisation in place, it is unclear whether: (1) the local authority had purported to authorise the contact restrictions by way of the DoLS; and /or (2) the care home was relying upon the DoLS authorisation to limit contact. Either way, I would very strongly suggest, would be intensely problematic. For the reasons set out here, a DoLS authorisation can only authorise restrictions on physical liberty; restrictions on contact give rise to Article 8 issues which require judicial authorisation unless they can be justified by reliance on s.5 MCA 2005, which is unlikely in any situation in which they do not align with the view of the subject of the DoLS.
[1] In referring to this coverage, I should make clear that I am not saying that all of the situations identified there fall into the same category as that of PB’s case. It is also the case that stress on families seeking to secure care can very easily and very quickly give rise to breakdowns of trust where that care is not (for whatever reason) available.
[2] This is not just an issue relating to Article 8 ECHR. Where a private care home does not take steps to obtain a DoLS authorisation for a ‘self-funder’ or a person whose care is arranged by the NHS, the private care home would not, itself, be breaching the Human Rights Act 1998. And, as identified by the Law Commission (see here at 15.41-50), depending upon whether or not the person is trying to leave, they may not even be liable for the tort of false imprisonment. The care provider (in England) will be in breach of Regulation 13(5) of the Regulated Activities Regulations, but that does not give rise to a direct cause of action against them by the person deprived of their liberty. The proposal by the Law Commission to plug this gap was not taken forward in the Mental Capacity (Amendment) Act 2019.
