Court of Protection: Health and Welfare

Brett regularly appears in the Court of Protection before all tiers of judge. He is robust in presenting clients’ cases and brings a common sense and pragmatic approach to proceedings. He was involved in the case of AMDC v AG & Anor [2020] EWCOP 58 where the High Court spelled out guidance to experts and professionals undertaking capacity assessments.

 

Brett has a wealth of experience advising in matters under the Care Act 2014, the Mental Health Act 1983, and in National Health Service Continuing Healthcare funding. These issues regularly crop up in the Court of Protection – such as identifying which public authority owes statutory duties to P, or how alternative options may be funded and made available to the court – and Brett is particularly well placed to advocate such arguments on behalf of clients. Brett has particular skill in bringing together different public authorities who each owe duties to P to bring about a holistic, joined-up approach, to any care, support or health package.

 

Public Law Children

Brett has significant experience in public law care proceedings, from interim removal applications, contact disputes, complex disclosure applications, through to final hearings.

 

Brett’s expertise in advising in cases where a child has a restrictive care package which may amount to a deprivation of their liberty (whether or not secure accommodation), building on his Court of Protection experience, is particularly sought after. Similarly, where issues of capacity or ‘Gillick’ competence arise in care proceedings, Brett brings particular knowledge to the table

 

Private Law Children

Brett has experience in contested private law proceedings and welcomes instructions in these matters.

 

Judicial Review

Brett has extensive experience in advising in age assessments in many contexts, including ‘eyes on’ assessments in obvious cases based largely on physical appearance and demeanour, Merton assessments, and where the young person claims to have been trafficked. Brett is happy to get involved and advise at an early stage in any litigation (which are often the more crucial stages).

 

Brett also advises in general judicial review proceedings in the context of health and social care.

 

Brett regularly advises in ordinary residence and designation disputes between local authorities, Clinical Commissioning Groups, and other public authorities in both adult social care and children’s social care. Brett also advises in charging and deprivation of assets under Care Act 2014, s.117 Mental Health Act 1983, and eligibility (and challenges) for NHS Continuing Healthcare.

Capacity, sexual relations and disclosure – examining a Court of Protection case that considered whether a 34-year-old man lacked capacity to make decisions about engagement in sexual relations, about disclosing information about the risk of sexual harm he poses to others, and about allowing the local authority to disclose information about the risk of sexual harm he poses to others.
October 31, 2023

Legal 500 2024, Tier 1 Leading Junior (Court Of Protection And Community Care) - 'Brett is a natural born advocate; he is outstanding on his feet. He is extremely knowledgeable across all areas of social care.'

Legal 500 2024 (Family: Children And Domestic Violence) - 'A consummate professional, who is very persuasive.'

Brett was awarded the Rising Star Award at the Yorkshire Lawyer Awards on 12 October 2017, in large measure for his work in promoting the rights and autonomy of vulnerable adults.

Brett was awarded the People Lawyer of the Year at the Lawyers in Local Government Awards in 2017, and was highly commended in the Legal Professional of the Year in 2018.

Re PN (Capacity: Sexual Relations and Disclosure) [2023] EWCOP 44 (Poole J) – determination of capacity in the novel area of making decisions about sharing information of the risk of sexual harm one poses to others.  The court also considered capacity to engage in sexual relations, in the context of an adult who is likely to offend, and determines on the facts of PN’s case his impulsive sexual behaviour was not caused by his mental disorder, as such, he does have capacity.  The court’s analysis of whether it is a reasonably foreseeable consequences of engaging in non-consensual sexual relations that the other person would suffer distress and loss of autonomy provides key guidance to practitioners.

 

Lincolnshire County Council v TGA & Ors [2022] EWHC 2323 (Fam) – considering whether parents may consent to arrangements which would otherwise amount to a deprivation of liberty within the meaning of Article 5 ECHR, in the wake of Lady Hale’s concerns, expressed in Re D [2019] UKSC 42 that a parent had no power to consent to a deprivation of liberty of their 16 year old child, and “…logically, this conclusion would also apply to a younger child whose liberty was restricted to an extent which was not normal for a child of his age.”

 

Lieven J had little difficulty endorsing earlier authorities and confirmed that “if a child under 16…does not have Gillick competence to make the decision as to his liberty, and his parents…decide to deprive him of his liberty, and no third party (such as the local authority or an NHS body) consider such deprivation to be contrary to his best interest, then the parents can lawfully deprive him of his liberty.”

 

AMDC v AG & Anor [2020] EWCOP 58 judgment of Poole J offering guidance to experts undertaking capacity assessments for the court.

 

Re B (Secure Accommodation Order) [2019] EWCA Civ 2025 (led by Frank Feehan QC) – leading judgment from as to the when s.25 Children Act 1989 (secure accommodation) should be used to restrict children’s liberty as opposed to orders under the inherent jurisdiction of the High Court.

 

Re Y (A Child) [2019] EWCA Civ 2209 – unsuccessful appeal as to designation under care order where child had no ‘ordinary residence.

 

Wakefield Metropolitan District Council & Anor v DN & Anor [2019] EWHC 2306 (Fam) – judgment of Cobb J dealing with orders under inherent jurisdiction for a vulnerable, capacitious adult and making anticipatory declarations as to DN's capacity and best interests under the section 15 and 16 of the Mental Capacity Act 2005, to cover those occasions when he has 'meltdowns' and is unable to make a capacitous decision as to his care.

 

Re E (Scottish Adopters English Adoption Proceedings) [2019] EWFC 9 - Cobb J Judgment confirming that the adoption application in respect of a child placed for adoption in Scotland with Scottish adopters could be determined in the Family Court of England & Wales.

 

Re C (Children) (Designation) [2018] EWCA Civ 900 – McFarlane LJ Successful appeal to Court of Appeal against the order of HHJ Dancey designating the City of Wakefield MDC under a care order for two children who lived with a relative under a residence order in Dorset.

 

Re IH (Observance of Muslim Practice) [2017] EWCOP 9 Cobb J (led by Nageena Khalique QC) - Application concerning the degree to which a person without capacity should be assisted in adhering to Islamic religious observances.

 

Re G (A Child: long-term accommodation: section 20 Children Act 1989) [2017] EWHC 78 (Fam) – Cohen J – successful application for declaratory relief that the use of long-term use of section 20 was appropriate for a teenager in residential placement and that care proceedings should not be brought.

 

Re S (Child as parent: Adoption Consent) [2017] EWHC 2729 Cobb J (led by Bridgette Dolan QC) – Judgment explaining how the "Gillick" test applies to a young person highlighting the three key principles relevant to decision-making under the Mental Capacity Act 2005 and their application to Gillick decisions, and defining the relevant information for assessing capacity in respect of the decision of consenting to the adoption of a child.

 

Re RA (Baby Relinquished for Adoption: Case Management) [2016] EWFC 25 (led by William Tyler QC) – Cobb J High Court guidance case as to practice and procedure in seeking declaratory relief in cases of children relinquished for adoption.

Inner Temple

Court of Protection Practitioners’ Association

Court of Protection Bar Association

Family Law Bar Association

Constitutional and Administrative Law Bar Association