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Claire van Overdijk

Claire van Overdijk

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Claire is a specialist public law and private client (trusts and estates) barrister, with expertise in private international law.

Claire’s public law expertise includes healthcare and social care, mental capacity (general welfare and serious medical treatment), mental health, ordinary residence disputes, and data protection. She is also frequently instructed in cases involving a human rights claim, particularly false imprisonment/unlawful detention. Claire is frequently instructed in the High Court, Court of Appeal and specialist tribunals in the public law field.

Claire was appointed to the Attorney General’s B Panel on 1 September 2016 following two years on the C panel. Claire received instructions from the Legal Ombudsman in the regulation of legal services; the Attorney General in charity and probate disputes; the Official Receiver in insolvency disputes; HMRC in tax/VAT related disputes; and the Home Office in immigration/asylum matters.

Claire has extensive experience in mental capacity law and the Court of Protection and has an established dual practice with specialism in the health/welfare and property/financial affairs jurisdictions of the court. She is the first and currently the only practitioner at the Bar to date to be recognised as a leader in both areas of the COP’s jurisdiction. Claire’s mental capacity practice is complemented by her public law and private client practice, which enables her to provide tailored advice to clients as appropriate. Claire is also a specialist in the international jurisdiction of the COP and cross border mental capacity issues, and is frequently instructed to advise in cases with an international element. She receives instructions from a range of clients such as the Office of the Public Guardian, the Official Solicitor, public bodies (local authorities, NHS Trusts/ CCGs, central government), as well as deputies and private individuals.

Claire’s private client practice includes expertise in contentious probate, family provision claims and trusts. In the mental capacity context, Claire advises in relation to LPA/EPAs, deputy applications, gift and statutory will applications, removal/substitution of P as trustee.  Claire’s practice includes advising in relation to cross border disputes concerning trusts, estates, foreign succession and domicile.

Noteworthy cases

Matter of MMAM (2016) (COP)

Represented the proposed deputy of P (following previous proceedings concerning P’s unauthorised removal from England to Saudi Arabia considered in MASAM v MMAM , MM LB of Hackney and Homerton University NHS Foundation Trust [2015] EWCOP 3) in circumstances where the deputy was resident in Dubai, and P continued to reside in Saudi Arabia.

AXD v Home Office No1 [2016] EWHC 1133 (QB); AXD v Home Office (No2) [2016] EWHC 1617 (QB)

Represented the Home Office in an unlawful detention claim concerning a Somali refugee who had been diagnosed as suffering from paranoid schizophrenia and was detained in immigration detention, which spanned five years in total.

Re MM (A Patient) sub nom Teresa Kirk v (1) Devon CC (2) MM (by his litigation friend, the Official Solicitor) (2015)

Represented Ms Kirk, the sister of P who had been removed from the jurisdiction to Portugal whilst proceedings were ongoing in the Court of Protection. The Court made various orders requiring P to be returned to the UK and seeking foreign judicial assistance from the Portuguese courts. Later contempt and appeal proceedings in this matter are reported at [2016] EWCOP 42; [2016] EWCA Civ 1221; and [2017] EWCA Civ 34.

Kebbeh v Farmer & Ors [2015] EWHC 3827 (Ch)

Inheritance (Provision for Family and Dependants Act) 1975 application where the deceased’s second wife was claiming that he was domiciled in the UK at the time of his death, but defendants to the claim (executors and beneficiaries) argued that he was domiciled in Gambia and thus the wife had no claim under the 1975 Act. Issues also arose in relation to the recognition of an Islamic divorce carried out in the Gambia. Represented the defendants.

An English Local Authority v SW [2014] EWCOP 43 (Moylan J)

Represented the English Local Authority at the earlier stages of these proceedings which concerned the international jurisdiction of the Court of Protection. The proceedings considered the position (in particular the habitual residence) of a Scottish woman placed by the Scottish statutory authorities in a rehabilitation placement in England.

LB Redbridge v G, C and F [2014] EWHC 485 (COP)

Represented the local authority in this case, which concerned the inherent jurisdiction of the High Court in relation to vulnerable adults who are said to be subject to duress.

S (by his litigation friend the Official Solicitor) v SSHD [2014] EWHC 50 (Admin)

Represented the SSHD in proceedings concerning the detention pending removal of an unlawful overstayer who suffered from serious mental illness. Successfully overturned on appeal on the application of the SSHD: [2015] EWCA Civ 652.

Muwonge v SSHD [2014] UKUT 514 (IAC)

Represented the SSHD in this case, which gives detailed guidance relating to the management and settlement of judicial review proceedings in the Upper Tribunal.

Re O [2013] EWHC 3932 (COP); [2013] WLR (D) 495 (Sir James Munby P)

Represented the daughter of an elderly incapacitated lady who had been removed from the jurisdiction to Scotland by her son. It was held that the COP had no jurisdiction to exercise its functions under the MCA 2005 in relation to P as she was no longer habitually resident in England & Wales.

Re HA [2012] EWHC 1068 (COP)

Represented the local authority in this matter, which sets out the interrelation between s.21A MCA 2005 challenges and the court’s welfare jurisdiction and the implications for legal aid.

Publications

Court of Protection Practice (Jordan Publishing), co-editor: annual publication; leading text for practitioners and the judiciary.

International Protection of Adults (Oxford University Press), co-editor: comparative analysis of private international law rules relating to mental capacity law and the Hague Convention on the International Protection of Adults.

Mental Capacity Law and Practice (3rd Edition) (Jordan publishing), co-editor.

Academia

2008 to 2016: Part-time member of University College London, Faculty of Law teaching in public international law and private international law.

Appointments & Memberships

  • Administrative Law Bar Association
  • Chancery Bar Association
  • Court of Protection Practitioners Association
  • Society of Trust and Estate Practitioners (full member)
  • STEP Mental Capacity Global SIG Steering Committee (elected member)

Languages

  • Portuguese
  • Spanish

Areas of Law


Recommendations


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Testimonials


“Noted for having a broad Court of Protection practice and being strong on mental capacity issues generally. As well as having a strong practice, she has published a number of texts relating to the Court of Protection.”
Health & Welfare, Chambers & Partners 2017

“She’s very good, very approachable, very friendly and willing to provide advice outside of cases.”
Health & Welfare, Chambers & Partners 2017

“Has a practice that encompasses both property and affairs and health and welfare matters. She acts for a range of clients, such as individuals, local authorities, the Official Solicitor and financial deputies. She is well known for her work in cases concerning statutory wills, gifts, trusts and disputed deputyships.”
Property & Affairs, Chambers and Partners 2017

“She’s very calm. We had an aggressive opponent, but Claire was very professional and a very good advocate.”
Property & Affairs, Chambers and Partners 2017

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