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The case was an appeal against orders made by Mr Justice Hayden, the Vice-President of the Court of Protection, to exclude the mother of a highly vulnerable 19-year-old woman (“P”) from proceedings relating to the best interests of P. Allegations of sexual abuse by her partner against P had been made and were being investigated by the police.
Tim Nesbitt QC and Alex Cisneros represented the mother, who had been excluded without being given an opportunity to participate in the hearing that led to the decision. In dealing with the case, the Court (for the first time in a Court of Protection case) adopted a “closed hearing” procedure in which a special advocate was appointed to represent the mother in the closed part of the case.
In overturning the decision of Hayden J, the Court carried out a far reaching review of the relevant authorities, including several ECHR decisions relating to Article 6 and Article 8. The Court laid a number of important points of principle including (contrary to positions argued by the Official Solicitor) that Article 6 was engaged, and that parties other than P in Court of Protection proceedings enjoy the same procedural safeguard as in adversarial litigation. It also laid down steps that should be considered by the Court of Protection when faced with cases involving highly sensitive material.
The judgment can be found here..
Tim and Alex were instructed by Karen May at Bindmans LLP.
Tim Nesbitt QC has a practice focusing in the areas of commercial, regulatory and public law. Tim has undertaken public law for many years with a particular focus in relation to Court of Protection / High Court in Court of Protection related matters. He appears very regularly for Local Authorities and other parties in Court of Protection proceedings. He is ranked in both Chambers & Partners and Legal 500 UK.
Alex Cisneros is a specialist public law and private client barrister. He has experience handling significant contentious and non-contentious matters with a particular emphasis on mental capacity and education. Alex acts regularly for the Official Solicitor, the Office of the Public Guardian, local authorities, CCGs and family members. In the last twelve months he has regularly appeared in Tier 3 (High Court) Court of Protection cases. Alex has a particular interest in cases involving younger clients, informed by his education law and community care practice.
News 20 Apr, 2021