XY, Re: welfare deputyship, internet use and the court's ultimate authority

In XY, Re [2025] EWCOP 55 (T2), Her Honour Judge Hilder resolved two significant questions arising from a welfare deputyship dispute: whether authority to regulate internet and social media use falls within a standard welfare deputyship order, and whether the Court of Protection retains jurisdiction to make best interests decisions even where a deputy holds the relevant authority and is willing to exercise it.

The deputyship order and the dispute

XY is a 29-year-old man with a complex profile of diagnoses including autism, ADHD, PTSD and pathological demand avoidance. His parents and brothers were appointed jointly and severally as welfare deputies in 2022 under an order conferring authority across four defined areas, including decisions about "particular leisure or social activities."

A dispute arose as to whether that authority extended to XY's use of the internet and social media. The deputies (led by AY, XY's mother) argued that online activity falls naturally within "leisure or social activities," and advanced a broader "maximalist" position: that an appointed welfare deputy may make any welfare decision not expressly excluded by the order or by statute. The applicant public bodies and the Official Solicitor on behalf of XY resisted both arguments.

Internet use as a sui generis matter

HHJ Hilder endorsed the "minimalist" position: authority conferred on a welfare deputy must be positively and specifically granted by the court. Deputyship is not a general welfare mandate — it is a defined set of decision-making powers. The contrast with property and affairs deputyship, which does carry a general authority expressly conferred, was held to be telling.

Following Cobb J's analysis in Re A (Capacity: Social Media and Internet Use: Best Interests) [2019] EWCOP 2, the judge confirmed that internet and social media use is a sui generis category, distinct from both contact and care, and from offline leisure or social activities. The unique risks of the online environment — exploitation, grooming, harassment, identity theft, and exposure to harmful content — place these decisions in a qualitatively different register. The deputyship order did not, on its terms or by inference, encompass them.

The deputies' reliance on Manchester City Council v CP [2023] EWHC 133 (Fam) was firmly rejected. The analogy between parental responsibility for minors and welfare deputyship for incapacitous adults was described as invalid, particularly in light of the Supreme Court's observations in N v ACCG [2017] UKSC 22.

The court's retained supremacy

HHJ Hilder also addressed whether the Court of Protection may make a best interests decision in an area where a deputy already has authority and is willing to act. The deputies argued the answer was no, construing section 16(2) MCA 2005 as disjunctive — once deputyship is conferred, the court's direct decision-making power is displaced.

The judgement rejected this firmly. The word "or" in section 16(2) carries no necessary implication of mutual exclusivity. Read in context — and alongside sections 16(4), 16(7), 16(8), 6(7) and the Act's underlying purpose of securing Article 6 and Article 8 ECHR rights — the court's position as ultimate arbiter of P's best interests is undiminished by a deputyship appointment. The Public Guardian's supervisory role over deputies is not a substitute for curial review. The argument from omission — that no provision expressly permits the court to override a deputy — was held to work against the deputies' position, not in favour of it.

Variation refused

AY's secondary position, that the deputyship order should be varied to include internet and social media decision-making, was also refused. The collaborative framework had, albeit belatedly, produced a workable Cyber Spider action plan. The gravity of the risks to XY, and the forensic advantages of curial oversight, made court-led decision-making more appropriate than delegation to deputies at this stage.

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