Covert recording and contact restrictions

By Amanda Hill, 1st November 2026

The main issue for this hearing was prohibiting covert recording and re-establishing contact between a mother and her son.

Gravely concerned about her son’s care, the mother had resorted to covert recording by giving her son a teddy bear with a hidden device inside. After listening to the recordings, she went to the police, assuming – on the basis of what she’d recorded – that her son would be moved from where he was living.

But when the covert recording was revealed, the Health Board stopped contact between mother and son, and made an application to the court (on 21st August 2026) for an interim injunction to prohibit her from recording in future and to re-establish a (restricted) contact regime.

The main issues for determination at this hearing (COP 13290314, before HHJ Porter-Bryant, sitting at Cardiff Civil and Family Justice Centre on 5th October 2026) were the injunction against the mother (“CL”) and best interests for her son (the protected party, “LL”) concerning the covert recording and the contact schedule.

The litigation friend for LL (not the Official Solicitor in this case) agreed that an injunction concerning contact was necessary to “preserve the current placement” and to protect LL’s privacy, as well as the privacy of others (staff members) who were also recorded. The litigation friend also agreed with the contact restrictions proposed by the Health Board.

The police took no further action and LL stayed where he lives.

But the mother is now not the only party to be concerned by the recordings. The position statement for LL records that, having listened to the covert recordings at a strategy meeting three days before this latest hearing, the litigation friend “has grave concerns as to the contents of these recordings and wishes to address these concerns in evidence”.

This hearing focussed on the injunction against CL and re-establishing contact between CL and LL, but also considered the concerns raised by the recordings and recent changes of care staff.

In this blog I will set out the background to the case before focussing on key decisions and issues arising in the hearing.

Background

This hearing is part of a long-running case (more than 5 years now) described by the judge as “protracted”, “costly” and “underscored by significant disputes between the parties, principally the Health Board and CL” (§4, Swansea Bay University Health Board v P and Ors [2023] EWCOP 67).

I have observed seven hearings since April 2024, and the Open Justice Court of Protection Project has published three blogs about the case (listed at the end of this post).

There are also two published judgments: Swansea Bay University Health Board v P and Ors [2023] EWCOP 67 (concerning a hearing which we blogged about) and an (unsuccessful) appeal before a Tier 3 judge (CL v Swansea Bay University Health Board & Ors [2024] EWCOP 22). HHJ Porter-Bryant has been the presiding judge in this case since the Health Board first applied to the Court of Protection in July 2021. The court over time has been asked to make decisions regarding LL’s residence, care and contact with others.

The protected party in this case has a number of diagnoses including significant learning disability, atypical autism, attention deficit hyperactivity disorder, hypermobility, low muscle tone, bowel problems, neuralgia and hydrocephalus. Until July 2021, he lived at home with his mum, CL, supported by carers and funded by a CHC package. The case was originally brought before the Court of Protection at that time because, according to the Health Board, the care package had broken down due to disagreements between mum and the care provider. The 2023 judgment states that “The Health Board has consistently struggled to find providers willing and able to provide a package of care to [LL]. In part, this has been due to the size of the package and lack of staffing resources generally in the area, but also due to the disagreement set out above” (§6). LL was moved to a new placement a significant distance from his home town, despite at a hearing on April 19th 2024, the judge saying “Community is of magnetic importance to LL, he is a (home town) boy”. That move was intended to be temporary. It broke down in May 2024 and LL moved to a new placement, still far away from his home town, one and a half hour’s drive away. That is where he lives today.

Contact restrictions imposed on LL’s mum are a recurring feature of this case. The 2023 judgment describes the detailed protocols providing for contact between them. The Health Board has argued that contact restrictions are needed to protect the placement, and the court has continued to authorise them. Mum has always been represented as a threat to the stability of care for her son. In the hearings I have observed, she has often been concerned about the care her son is receiving and asked the Health Board to consider different options, particularly those closer to his home town. She has contacted potential care providers herself. To date, the Health Board have not commissioned other options. The Health Board position statement for this hearing set out the current situation: “At the present time there are no viable alternative placements for LL and therefore no live dispute to resolve”.

Decisions at this hearing (5th October 2026)

Injunction

This latest hearing primarily considered whether the interim injunction against mum should be maintained. The judge authorised the continued injunction against mum video-recording and audio-recording her son. He did make the point that the injunction should be worded so that it does not prevent mum making ordinary family videos of her son, such as on his birthday. The judge also authorised the interim changes to contact arrangements between mum and her son. At present mum has no face to face contact at all with her son and efforts are to be made for supervised contact to resume.

Deprivation of liberty

A decision about LL’s deprivation of liberty was deferred until the next hearing, but Counsel for the Health Board, Rhys Hadden, reported the (shared) view of the Health Board and LL’s Litigation Friend, that following the Supreme Court AGNI decision, LL was unlikely to be deprived of his liberty. However, the judge would maybe need a whole day to consider that at the next hearing, to be listed for 11th December 2026. It will be interesting to see how much weight is given to contact restrictions as a factor in the multi-factorial decision. §2.5 of the DoLS Code gives two examples of contact restriction factors that may indicate a Deprivation of Liberty: (a) Staff exercise control over assessments, treatment, contacts and residence (b) The person is unable to maintain social contacts because of restrictions placed on their access to other people.

CL attendance at LL’s medical appointments

CL was requesting permission to attend medical appointments with her son. He is currently taken to them by care staff. Her counsel submitted that there is a high turnover of staff and that new staff don’t always understand previous medical issues. But Counsel for the Health Board submitted that the care provider would not allow CL to attend medical appointments as she would overwhelm care staff if she was in the same room as them. LL’s father, the 3rd respondent in this case, stated that CL knows LL better than anyone, and it was concerning that staff turnover means staff don’t have the medical knowledge about LL. The judge decided not to allow CL to attend medical appointments: he was not prepared to make an exception to the contact schedule. He would order that medical information should be shared with CL but (he said) he was not going to get into an argument about the appropriate channel for that.

Carers: Suspensions and professional boundaries

Counsel for the Health Board revealed at the start of the hearing that the care provider is conducting an internal investigation and three of LL’s carers have now been temporarily suspended, as a result of what had been revealed by the covert recording, but that no inference should be drawn from this and it was standard practice. He also stated that two other care staff had stepped down or been moved on, and so the care providers were trying to recruit new staff. This impacted mum having people to supervise contact. Later in the hearing, Counsel for the Health Board clarified that the care provider had asked the two carers to step down as they were concerned about professional boundaries being crossed. The judge asked what that meant, but there didn’t seem to be anything more concrete. He asked the Litigation Friend if they would be concerned about that: were those boundaries being too close to, or too distant from, LL or CL, and wouldn’t they want to find out more? The Litigation Friend replied that the Health Board didn’t have any more information.

CL’s representative shed a little more light. She told the court that CL had said the two carers were asked to relay information that was not true to CL, and that when they had refused to do that, they were ‘let go’. CL asked whether those carers could still facilitate supervised contact using direct payments. The judge replied that he didn’t have the power to authorise that, but the Health Board were in the courtroom and would hear the request. There seemed to be an implication that the carers had been ‘let go’ because they were too close to CL and would not lie on behalf of the care providers. LL’s dad said that the two carers had a “great relationship” with LL. LL’s parents wanted them involved in their son’s care, or to facilitate contact. The Health Board agreed to add a recital to the order about the two previous carers. The judge reiterated that there was a limit to what he could do, and he could not order the care agency to reinstate or rota staff.

Complaints and the impact of the Transparency Order

The position statement for the Health Board refers to CL making numerous complaints to regulatory bodies and states that transparent and swift responses to those complaints are “hampered by the Transparency Order and the inability to share important information from proceedings”. The Health Board was seeking the court to order the disclosure of court judgments and orders with “regulatory and inspectorate bodies investigating public bodies, care agencies or professionals involved in LL’s care”. LL’s Litigation Friend was content for the Health Board to share court judgments and sealed orders with the regulatory and inspectorate bodies investigating public bodies, but wanted more “limited wording” for care agencies or professionals involved in LL’s care, to preserve LL’s privacy.

My notes don’t refer to this issue in the hearing, so I’m not sure whether it came up or I missed it. I haven’t yet had sight of the approved order, which I have asked for but not yet received. I find the request from the Health Board puzzling though. The Transparency Order has a standard paragraph at 9(ii) confirming the applicability of paragraphs 33-37 of Part 3 of PD4A, which reads (in part):

Communication of information for purposes connected with the proceedings
34. (1) A party or the legal representative of a party, on behalf of and upon the
instructions of that party, may communicate information relating to the proceedings to any
person where necessary to enable that party—
(a) by confidential discussion, to obtain support, advice or assistance in the conduct
of the proceedings;
(b) to engage in mediation or other forms of non-court dispute resolution;
(c) to make and pursue a complaint against a person or body concerned in the
proceedings; or
(d) to make and pursue a complaint regarding the law, policy or procedure relating to
proceedings in the Court of Protection.

It may be that “communication of information” cannot be read with certainty as covering the court documents to which the Health Board refers – though two judgments are published and sealed orders are usually publicly available on request.

Court etiquette

Both of LL’s parents were in court – but the judge addressed them differently. HHJ Porter-Bryant referred to CL as “Ms (Surname)”. But he addressed LL’s dad by his first name. This is consistent with the other hearings I’ve observed in this case where both parents have been present. I don’t recall this happening in any other case. Either all family members are addressed by their first names with their consent or they are all addressed with titles and surnames. Maybe at the very beginning of this case the judge asked how each parent would like to be addressed – I don’t know – but for an observer, the impression this conveys is that the judge has a better relationship with LL’s dad than with his mum, and that his evidence counts for more.

Following up on concerns

Newport City Council, not a party to these proceedings, is conducting a safeguarding enquiry. The Litigation Friend stated towards the end of the hearing that the police were possibly going to look again at the concerns. LL’s Litigation Friend sought a third party order against Newport City Council, to obtain their safeguarding records, and information from the police. The Litigation Friend wants to look further into the recordings, but accept that there must be an element of proportionality, as there were 21 days of recordings. He also requested the transcripts and the judge agreed.

I have requested a copy of the approved order to confirm these details but to date I haven’t had a reply.

I plan to observe the next hearing on 11th December 2026, to see what has happened following the concerns raised, and also to see what the determination about LL’s deprivation of liberty is. I hope CL can start seeing her son in person too.

Amanda Hill is a PhD student at the School of Journalism, Media and Culture at Cardiff University. Her research focuses on the Court of Protection, exploring family experiences, media representations and social media activism. She is a core team member of OJCOP. She is also a daughter of a protected party in a Court of Protection case and has been a Litigant in Person. She is on LinkedIn (here).

Previous blog posts about this case

Can a judge discharge a Deputy without determination of wrong-doing? Statutory determination in action

Crisis point: Is hospital a viable alternative for P

Unsuccessful application for permission to appeal

Photo by Sandy Millar on Unsplash