‘A tough negotiator, who is excellent with lay clients [with] an impeccable court manner’
The Legal 500
Emma was recently instructed by the Welsh Government as junior counsel to defend a claim for judicial review brought by parents who objected on religious and/or philosophical grounds to their children being taught “Relationships and Sexuality Education”. A summary of this important judgment can be found here.
EXPERIENCE AND EXPERTISE
Emma is continually instructed by health and social care bodies and private individuals in relation to a wide range of public issues including:
- Duties and powers towards children and adults regarding accommodation and community care services
- Duties of a local authority to a child under the Children Act 1989/ Adoption Act 2002/ Social Services & Well-being (Wales) Act 2014
- The closure of residential care homes
- Charging issues including the successful recovery of care home fees in the High Court
- Local authority funding issues and direct payments
- Ordinary residence disputes including cross border issues between England and Wales and England and Scotland and in applications for determinations and reviews by the Secretary of State
- Disputes between social services authorities and health authorities regarding (inter alia) funding issues
- The formulation of local authority policy and eligibility criteria
- The duties of ICB’s regarding PHB’s
Many of the above issues result in judicial review claims or claims brought pursuant to s.7 of the Human Rights Act 1998 in which Emma has acted for both Claimants and Defendants. Emma also has experience of acting as independent author in serious case reviews (involving multi-agencies) and advising in relation to adult and child practice reviews; providing advice on a local and national level. Emma is currently appointed by a Safeguarding Board as the independent reviewer in a child practice review concerning the death of a two-year-old child.
In addition to the Administrative and Civil Courts, Emma is experienced in seeking relief pursuant to the Inherent Jurisdiction of the High Court, for and on behalf of vulnerable, yet capacitous children and adults.
Emma advises public bodies and patients detained pursuant to s.2 and s.3 of the Mental Health Act 1983; including claims for damages, and is instructed in nearest relative displacement applications and in appeals to the Upper Tribunal (Administrative Chamber).
Emma regularly advises public authorities on issues of data protection and access to information in the above areas of law and is experienced in drafting policies in complex matters for Local Authorities and Charities and advising with regards to the legality or otherwise of policies currently in place.
CASES AND WORK OF NOTE
R (on the application of Isherwood et al) v The Welsh Ministers  EWHC 3331 (Admin), Steyn J (final hearing), Tipples J (interim hearing)
Instructed by the Welsh Government as junior counsel to defend a claim for judicial review brought by five parents who objected on religious and/or philosophical grounds to their children being taught “Relationships and Sexuality Education” which was a mandatory element of the new Curriculum and Assessment (Wales) Act 2021. The claimants challenged the lawfulness of “The Curriculum for Wales – Relationships and Sexuality Education Code” and “The Relationships and Sexuality Education: Statutory Guidance”. All grounds were dismissed following a two day contested hearing. In particular, the court found that no fundamental parental right of excusal existed at common law, and in relation to the second sentence of article 2 of protocol 1 ECHR, that both of the challenged documents complied with the pluralism requirement. Emma successfully represented the Welsh Government at the interim hearing and was led by Jonathan Moffett KC of 11KBW at the final hearing. Please see here for the judgment.
North West Anglia NHS Foundation Trust v BN & Anor  EWHC 663 (Fam), Sir Jonathan Cohen
Instructed by the applicant Trust for a declaration pursuant to the inherent jurisdiction that BN had died due to an irreversible absence of brain-stem functioning, and, as a consequence, that mechanical ventilation and all ancillary care and treatment should be withdrawn. The application was made as BN’s foster mother, PS, disagreed, and sought further clinical opinion. The declarations were made as the court was satisfied that treating clinicians had followed the 2008 Code of Practice for the Diagnosis and Confirmation of Death, and that no additional testing was required. This appears to be the first reported case relating to an adult (and not a child), and provides confirmation that where the court is satisfied that death has occurred, that best interest considerations are irrelevant. Please see here for the judgment.
Great Ormond Street Hospital for Children NHS Foundation Trust & Ors v MBC & Ors  EWHC 2574 (Fam), Peel J
Instructed by the first respondent mother on a pro bono basis through Advocate in a serious medical treatment application where declarations were sought that it was lawful and in the best interests of a 19 month old child who sustained a profound neurological injury at birth for ceilings of care to be imposed; including any form of invasive ventilation, escalation of intensive care support or CPR. Having heard the clinical evidence, the first respondent did not oppose the application as she did not consider that her daughter’s life should be prolonged at all cost (acknowledging that the suffering her daughter felt may outweigh what little benefit she received from her life). The case involved cultural and religious issues in addition to complex medical issues. Please see here for the judgment.
A Teaching Hospitals NHS Trust v DV (A Child)  EWHC 1037 (Fam), Cohen J
Instructed by the applicant Trust in a case involving a competent minor, DV, who required urgent treatment for a right lung metastasis by way of right lung pulmonary metastasectomy under general anaesthetic. The surgery carried a risk of haemorrhage and DV was a practicing Jehovah’s Witness who objected to transfusion. An order regarding the lawfulness of withholding blood products was sought by the Trust, which was granted, notwithstanding the arguments raised on behalf of DV that due to his age (17) and competence, that he was able to make treatment decisions without the involvement of the court. The court dismissed the application of DV for declaratory relief that DV could decide his own medical treatment and similarly dismissed arguments raised regarding the incompatibility of section 8 of the Family Law Reform Act 1969 with Articles 3, 5, 8, 9 and 14 of the European Convention on Human Rights. Please see here for the judgment.
Great Ormond Street Hospital for Children NHS Foundation Trust v MK (by her litigation friend, the Official Solicitor)  EWHC 3476 (Fam), Peel J
Instructed by the Trust in a serious medical treatment application where a declaration was sought that it was lawful and in the best interests of a 7 year old child to undergo urgent open heart surgery in circumstances where no person could legally consent to the treatment. As highlighted by the court ‘A point of perhaps wider interest to practitioners has emerged about the use of a child arrangements order to confer parental responsibility on the close relative with whom the minor lives, so as to avoid the need for further such applications where there is agreement as to the way forward’. The court made the order sought by the Trust and a separate child arrangements order was made in favour of the child’s relative, the court highlighting that ‘this may be a useful course of action in other cases’. Please see here for the judgment.
A Healthcare and B NHS Trust v CC (by his litigation friend, the Official Solicitor)  EWHC 574 (Fam), Lieven J
Jointly instructed by the applicants in a complex case concerning CC, who had diagnoses of psychotic depression and a mixed personality disorder who was detained under section 3 MHA 1983. CC was also deaf, had type 1 diabetes, and suffered complex physical health issues caused by chronically poor compliance with the required diabetic treatment, including renal failure. The court had to consider the interplay between the MHA 1983 and the MCA 2005 and determine whether, and if so, how dialysis could and should be lawfully given due to CC’s refusal. CC would die within 6 weeks without the necessary treatment. The court agreed with the primary argument that CC’s refusal of dialysis was a manifestation of his mental disorder and that he could be treated under section 63 MHA 1983. Please see here for the judgment.
Re ND (Court of Protection: Costs and Declarations)  EWCOP 42, Keehan J
Instructed by the Official Solicitor in a successful application for declaratory relief and costs arising from the failures of a Local Authority to discharge its statutory duties arising under the Children Act 1989 and the Care Act 2014 in respect of a young person, ND, who had particularly complex needs, but was (ultimately) found to have capacity to make decisions in respect of his health and welfare. Please see here for the judgment.
A Local Health Board v JK  EWHC 67 (Fam), Lieven J
Instructed by a Local Health Board in an application relating to the future medical treatment of JK. JK was a prisoner on remand for the alleged murder of a family member and a restricted patient under section 48 MHA 1983. He was refusing to eat and wished to die. The case was described by the court as ‘very difficult’ due to the overlapping legal frameworks of the MCA 2005, the MHA 1983 and the inherent jurisdiction of the High Court. The court determined that the proposed treatment (which included force-feeding by way of nasogastric tube) was treatment within the scope of section 63 MHA 1983 as JK’s refusal to eat was a manifestation or symptom of his autistic spectrum disorder. JK’s consent was not therefore required for the medical treatment; which included force feeding. Emma was led by Michael Mylonas KC. Please see here for the judgment.
R (on the application of HE) v Abertawe Bro Morgannwg University Health Board  Mrs Justice Lambert (case management)
Instructed by the Health Board to defend an application for judicial review of its commissioning decision to provide care at home via the defendant’s core community nursing service. HE has a diagnosis of hypermobile ehlers danlos syndrome, postural orthostatus tachycardia syndrome and possible mast cell activation disease. She is eligible for CHC funding due to her primary health need and it was claimed that the defendant had (inter alia) acted unlawfully in failing to meet her assessed needs having regard to the extent of the care proposed. Following negotiation, HE withdrew the claim prior to the substantive hearing.
2019 onwards: instructed by the Welsh Government to advise upon:
- Religious education in schools
- Collective worship in schools
- Education grants
- Deprivation of liberty issues in specialist educational placements
- SEN specialist assessment processes (including how a pupils capacity impacts on such processes)
- Consultation processes (pre-regulatory implementation) and statutory interpretation
- Participation and representation of children, young persons and parents who lack capacity within the tribunal system
- Duties to train the police
- Amendments to the Immigration Rules published by the Home Office insofar as they concern the definition of a higher education institution in Wales
- Development of the ‘Education and Skills’ section for the Law Wales website.
Re CF, TB, JS, KS, TE & JE (by their litigation friend) v A Local Authority  HHJ Harrison
Instructed to represent 6 children in Part 8 claims pursuant to section 7(1)(a) of the HRA 1998. Declarations and damages were sought arising from the defendant’s actions including (i) a failure to apply to the court to revoke placement orders within a reasonable period (ii) the consequent uncertainty which caused anxiety/distress (iii) the lack of procedural protection provided by a children’s guardian and (iv) failing to provide a proper opportunity for a settled/secure family life through the identification of an adoptive placement. The proceedings were settled by consent (including damages) with the approval of the court pursuant to CPR 21.10.
R (on the application of JK, by his litigation friend, FK) v Betsi Cadwaladr University Health Board & Wrexham Borough Council 
Instructed by the Health Board in an application to judicially review the process it adopted, jointly with the Local Authority, following a dispute regarding JK’s eligibility for CHC funding. JK has a rare condition (landau-kleffner syndrome) and a working diagnosis of isovolericacidaemia. Issues include (i) the lawful process of determining whether JK has a primary health need (ii) whether a lawful decision was made by the Health Board regarding use of an independent user trust (as direct payments for health services cannot be made in Wales). The claim is currently stayed in order for the dispute resolution process to conclude.
M v ABM University Health Board  UKUT 120 (AAC) UTJ Mitchell
Successful appeal on behalf of a patient detained for treatment pursuant to s.3 of the Mental Health Act 1983 on a point of law regarding an order made under rule 17 of The Mental Health Review Tribunal for Wales Rules 2008 prohibiting the disclosure of any document relating to the administration of covert medication to the patient. The case provides guidance for Mental Health Tribunal cases in covert medication disclosure disputes involving patients without the capacity to appoint a representative. Please see here for the decision. Click here to read Sophia Roper’s blog post on this case.
An English Local Authority v a Scottish Local Authority 
Instructed to represent an English Local Authority in a review of a determination made by the Secretary of State for Health under s.40(2) of the Care Act 2014 and within a parallel judicial review claim. The respondent is a Scottish Local Authority where complex cross border issues apply. The Secretary of State found in favour of the English Authority.
A Local Authority v A Local Health Board  & WHSSC  (NHS funding disputes) 
Instructed to advise a Local Authority regarding the decisions of a number of Local Health Boards not to fund high value placement costs for children with mental health needs which required a comparative analysis of the duties of the Local Authority (Social Services & Well-being (Wales) Act 2014) and those of the NHS (the NHS (Wales) Act 2006 and the Welsh Health Specialised Services Committee (Wales) Regulations 2009).
Re CM 
Instructed on behalf of a patient regarding his transfer from the UK to the Republic of Ireland under s.86 of the Mental Health Act 1983 Act as he was not a British citizen or a Commonwealth citizen having the right of abode in the UK.
Re M 
Instructed by the Director of Social Services within a Local Authority to prepare an independent report regarding the safeguarding practices and procedures in place for children following the conviction of a former employee of child sexual abuse.
Re MC 
Instructed by a Local Authority to defend a claim for judicial review where it was asserted that the Local Authority failed to comply with its statutory duty to meet the care and support needs of an adult contrary to s.35 of the Social Services and Well-being (Wales) Act 2014.
Re RC 
Instructed by a Local Authority to advise upon the repatriation of a national of the United States of America with complex care needs who was brought from California by his family and abandoned in the UK and who lacked the capacity to make decisions regarding his residence and care and treatment needs.
Re Determination by the Secretary of State 
Instructed by an English Local Authority in relation to three complex ordinary residence disputes; two of which were against Welsh Local Authorities involving expensive care packages and to prepare the legal submissions and statement of facts for each case in order for a determination to be made by the Secretary of State for Health pursuant to s.32(3) of the National Assistance Act 1948 in accordance with s.40 of the Care Act 2014.
Re Adult A 
Appointed by an Adult Protection Committee as independent author to undertake a Serious Case Review concerning the death of a care home resident to establish whether lessons could be learnt about the way in which local professionals and agencies work together to safeguard vulnerable adult.
- Welsh Government A Panel of Junior Counsel (2021)
- Attorney General Panel of Special Advocates (2017)
- LexisNexis expert panel (2017) to provide advice in the areas of Public Law, Adult Social Services/Community Care and the Court of Protection
- Panel of Legislative Draftsmen to the National Assembly for Wales (2008)
- Welsh Government Junior Barrister (Public Law Scheme)
Emma is recommended as a leading junior in the Legal 500 for Administrative and Public Law (including Civil Liberties and Human Rights), the most recent quote being that ‘She prepares cases to a very high level of detail.’