Set out below are a number of cases that we or our current staff have been involved in. Please click on the title itself for a link to the case report (opens in new window).
Cases involving Actions Against Police & Public Bodies
Here, we challenged a decision of the IPCC linked to the lawfulness of plain clothed police officers stopping two young boys in a car.
In this case, a challenge was brought to require the defendants to quash a caution administered otherwise than in accordance with the Home Office guidance.
We represented Garry Vian in a claim for malicious prosecution and misfeasance in public office against he Metropolitan Police following his prosecution for the murder of Daniel Morgan in 1987. We lost in the High Court but subsequently successfully appealed to the case to the Court of Appeal and secured Mr Vian £104,000 in compensation. See the Court of Appeal decision below.
We represented Garry Vian in this matter. This is the Court of Appeal decision which overturned the High Court decision. The Court of Appeal agreed that Mr Vian had been maliciously prosecuted for the brutal murder of Daniel Morgan in 1987. A senior police officer, Detective Chief Inspector David Cook, was found to have suborned the evidence of a mentally ill super grass witness, an act which rendered the Commissioner liable in both malicious prosecution and misfeasance in a public office. Mr Vian was later awarded £104,000 in compensation.
Cases involving Court of Protection
Maria represented AB in this case, by her litigation friend the Official Solicitor. The case is ongoing, but at this particular two day hearing the court was concerned with how and when AB should move from a temporary care home placement back to her home. The court held that it was in AB’s best interests to move back to her home with a 2:1 package of care during the day, and 1:1 support at night, and that the move should take place within 8-12 weeks of the date of the hearing.
This case, in which we represented the father, concerned a vulnerable young lady with Down’s Syndrome who was the subject of safeguarding investigations by her local authority. It is one of few cases in which the Court of Protection awarded costs against the local authority following its poor approach to the safeguarding investigations and the proceedings.
We represented PB in this case, by her litigation friend the Official Solicitor. PB was an elderly lady who wished to reside with her husband of many years. The case concerned very difficult issues of capacity as PB was so articulate and intelligent. The judgment also raises interesting points, some controversial, about the use of the High Court’s inherent jurisdiction.
We represented the patient in an application by an NHS Trust for declarations relating to a treating clinicians decision not to impose a blood transfusion on the patient, who was a Jehovah’s Witness, detained in a secure psychiatric hospital. The patient was considered to have capacity and had made an advance decision refusing blood transfusions if he lost capacity. The court respected the patient’s capacitous wishes and agreed that the transfusion should not be forced upon him.
An incapacitated person who was the subject of an application under the Mental Capacity Act 2005 s.16(2)(a) for a welfare order based on a care package whose implementation gave rise to a deprivation of liberty did not automatically have to be joined as a party to the application. That was particularly so where the proceedings were non-contentious and there was a family member or friend who could act in a balanced way to promote the person’s best interests and perform the independent checks and reviews required by Cheshire West and Chester Council v P  UKSC 19.
We represented SJ-F in this case, by her litigation friend the Official Solicitor. SJ-F was a 55 year old woman with a number of physical and mental health conditions, including diagnoses of schizophrenia and a mild learning disability. SJ-F’s son, JJ-F, was arrested for assaulting SJ-F whilst on licence for another offence. Additionally, there were concerns in relation to JJ-F’s ability to cooperate with the healthcare professionals attending to SJ-F needs in the community. The local authority arranged for SJ-F to reside in a 24 hour care placement prior to JJ-F’s release from prison. SJ-F wanted to return to her flat and to live with her son.
Many of the court’s case management directions were concerned with the issue of exploring the options for SJ-F’s future residence having regard to her complex health needs on the one hand and her desire to live in or near the borough where she had resided for many years and her family on the other.
The court decided that “…the magnetic factor in this matter is SJ-F’s need for healthcare by professionals. The imperative towards implementing SJ-F’s clear preference is outweighed by the equally clear potential for detrimental effect to her health”.
Maria represented NLH in this case, instructed by his litigation friend the Official Solicitor. The proceedings concerned NLH, who was suffering in the late stages of the degenerative neurological condition known as Prion disease. The local authority applied to the Court for an order permitting the taking of samples from NLH to assist with DNA testing. An order made by another judge sitting in the family court had declared that the outcome of the DNA tests would be of vital importance to the resolution of proceedings in that court. The results would be important not merely to establish paternity of the child in question but also because it was considered important that any child of NLH should be aware that there was a possibility that he or she might have inherited the disease so that, when the child was older, a decision could be taken about genetic testing. NLH lacked capacity to consent to the taking of the DNA sample, and the local authority asked the court to determine that this would be in his best interests. The court did decide that it would be in his best interests, and this was non-contentious. However, the court delivered this judgment because the DNA Company in question had in fact gone ahead and taken the sample before the court had made its decision. This judgment is therefore a reminder for “practitioners, carers and those involved in taking samples in these circumstances that, where the patient lacks capacity and an application has been made to the Court of Protection for an order authorising the taking of a sample, it will be unlawful for the sample to be taken without the Court’s permission.”
We represented RM in this case and was instructed by the Official Solicitor. RM (a US citizen) with profound learning disabilities, had been removed by his father from England & Wales to the United States in contravention of an order from the Family Court. RM’s mother started proceedings started shortly before RM turned 18, his seeking his return to England & Wales; his father made clear that he would not bring him back as he believed it to be in RM’s best interests to remain living in the USA. During the course of the case, RM became an adult and the court highlighted that even if RM was habitually resident in England and Wales, there was no readily available legal mechanism to seek to compel his return, the US authorities being neither willing nor able to take steps to return a US citizen to the UK in such circumstances. The case highlights a real and problematic difference between the ability of the English courts to protect adults removed from this jurisdiction as compared to their ability to protect children.
In this case we represented AD by his litigation friend in an application made by the CCG for declarations relating to administering both doses of the Covid-19 vaccination to AD and a future booster vaccination. There was consensus that AD lacked capacity to make this decision. AD had an aversion to medical intervention and his expressed wishes were that he would not want the vaccination. Therefore, sedation was proposed as a proportionate measure to administer the vaccination. AD’s mother, who was a litigant in person, opposed the vaccination due to concerns about its safety and the possible distress it would cause AD. In a growing body of case law concerning the Covid-19 vaccination, such use of sedation and the question of a booster vaccination had not yet been determined by the court. HHJ Brown determined that administering the two doses of the vaccination in line with the care plan was in AD’s best interests, but did not authorise a booster vaccination.
Cases involving Family
In this case, we represented the wife. The husband and wife were members of a Hasidic Jewish community during their marriage, but the wife’s departure caused a significant rift. In court, Nicholas Cusworth QC considered the wife’s claim for an order to sell the former family home under TLATA, as well as the husband’s claim for a financial remedy. The court ordered that the wife receive a lump sum which if not paid within 3 months would result in the sale of the property.
We represented the father in this case. The issue for the court in this matter was regarding the mother’s drug use and therefore whether she was able to care for her baby. This matter considers hair strand testing and the science and reporting behind it. The mother’s drug use was tested significantly by 3 different laboratories, however the results for the same time period varied considerably. The Judge in this matter reiterated the need to treat numerical data with proper caution as well as the importance of reading such reports with attentiveness so as not to jump to conclusions. In his judgement, the Judge provided 7 suggestions for report writing in hair strand testing scenarios.
18 year old mother and 23 year old father, having continuous drug problems and unwilling to work with the professionals. The court has placed their first child, A, in the care of the local authority with permission for adoption. Held that the second child, B, should be adopted together with the first child as the parents would not be able to care safely for B, would not be able to offer care that was calm, stable and consistent and would not be able to meet his long-term needs.
Re T (Children) (contact: application to replace indirect contact with supervised contact)  All ER (D) 87 (Apr)
The Court allowed the applicant father’s appeal against a ruling reducing contact with his children to indirect contact and dismissing his application to change the name of his youngest child. The judge had misdirected himself in reaching the conclusion he had reached in respect of contact and the supervised contact order would be restored. The name change application would be remitted to the County Court.
A judge had erred when determining that a local authority housing tenant did not have a secure tenancy of a flat following a possession order issued against the tenant, as a subsequent agreement between the parties showed an unequivocal intention on both sides to create, or to recognise, a secure tenancy.
Cases involving Mental Health
This challenge was against the requirement (in the Tribunal Rules) that a service user, detained under the Mental Health Act 1983, had to be assessed by the medical member of the Tribunal when applying to them for a review of their detention.
The patient had been transferred to a psychiatric hospital from prison, where he had been serving a life sentence. The First-tier Tribunal notified the secretary of state that he was suitable for conditional discharge. The secretary of state referred the matter to the parole board and refused to consent to the patient having unescorted leave in the community. The patient sought judicial review of his refusal and, when granting permission, the High Court made an interim anonymity order. When the claim was ultimately rejected, the judge declined to continue the anonymity order. Held that there was no presumption of anonymity in civil proceedings in the High Court relating to patients detained in psychiatric hospitals or otherwise subject to compulsory powers under the Mental Health Act 1983. In each case the question was whether anonymity was necessary in the interests of the patient. A balance had to be struck between the public’s right to know what was going on in court and who was involved, and the risk of the patient’s rehabilitation being jeopardised by his identification.
In proceedings in which a person detained under the Mental Health Act 1983 s.2 had declined representation when she appeared before the First-tier Tribunal, the Upper Tribunal gave guidance on the appointment and duties of a legal representative appointed by the First-tier Tribunal under the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 r.11(7).
The role of factual findings in relation to risk assessment; whether a Tribunal had made a factual error in reaching conclusions of fact; the adequacy of reasons relating to findings of fact – AM v Partnerships in Care Ltd and Secretary of State for Justice –  MHLR 214 Points Arising: Acts taken into account in a risk assessment must be proved on a balance of probabilities. Facts and Outcome: In upholding detention rather than granting a conditional discharge, a Tribunal found that AM had been responsible for 2 of 3 rapes alleged against him (which had not led to charges or convictions) and so presented a risk of sexual violence that required assessment and treatment. This was quashed and remitted by the Upper Tribunal on the basis of errors of fact as to the forensic evidence in support of the allegations and the lack of reasoning.
Patients subject to restriction orders under the Mental Health Act 1983 s.41 had no procedural right to have their requests for extra-statutory recommendations heard by the First-tier Tribunal.
AC appealed against the tribunal’s rejection of his application for a notification under s74 that, if subject to a s37/41 hospital order rather than a s47/49 prison transfer direction, he would be entitled to a conditional discharge. The Upper Tribunal gave guidance as to the scope of the First-tier Tribunal’s jurisdiction when considering an application for discharge under the Mental Health Act 1983 s.74(1) made by a prisoner who had been transferred to a psychiatric hospital during his sentence.
X and Y had been made subject to a hospital order under the Mental Health Act 1983 s.37 and a restriction order under s.41. X applied to the tribunal for an extra-statutory recommendation for leave outside the hospital, and Y for a move to less restrictive conditions. While a First-tier Tribunal was free to make an extra-statutory recommendation in relation to restricted patients, it had no legal power to make one and could never be compelled to do so.
There is no need for reasons for not making a recommendation where, as here, there is no contention (or any evidence in support of a contention) justifying a recommendation or the consideration of it. In any event, an extra-statutory recommendation, outside the scope of s72(3), has no legal effect and is not susceptible to judicial review. That s72 does not allow consideration of a hospital’s suitability in terms of security or family proximity does not disclose a Convention incompatibility: a lacuna in an Act or a failure to provide an effective remedy for a Convention violation does not mean that the Act is incompatible.