Gavin Collett continues with success by being ranked by Chambers and Partners 2020


Chambers is delighted to congratulate Gavin Collett on his ranking in the Planning – Western (Bar) by Chambers and Partners 2020 (Band 2).

Gavin is well regarded for his expertise in planning law, with particular specialist knowledge in highways and rights of way. He acts for local authorities, as well as developers and private individuals. He is the head of the administrative and regulatory team at Magdalen Chambers.

Read more about the success of Magdalen Chambers rankings in Chambers and Partners 2020

Nigel Moore is ranked again by Chambers and Partners 2020

Chambers is delighted to congratulate Nigel Moore on his ranking in the Employment – Western (Bar) by Chambers and Partners 2020 (Band 3).

Nigel was called to the Bar after a number of years practising as a solicitor, and has since acted for both respondents and claimants in a range of contentious employment matters. He is well reputed in the market for his work in whistle-blowing claims and his practice extends to unfair dismissal, race discrimination and age discrimination claims, as well as TUPE, industrial action and restrictive covenants.

Strengths: “His strength is his technical analysis – any work prepared by Nigel will show full consideration of all issues, no matter how small, yet he also delivers the advice in a manner which is clear and to the point.” “Nigel is extremely impressive in his speed at identifying the key issues in a case and for finding ingenious legal arguments in cases that may initially seem hopeless.”

Read more about the success of Magdalen Chambers rankings in Chambers and Partners 2020

Carol Mashembo celebrates success with further rankings in Chambers and Partners 2020.

Chambers is delighted to congratulate Carol Mashembo on her ranking in the Family/Matrimonial Department for Western (Bar) by Chambers and Partners 2020 (Band 2).

Carol has a diverse family practice encompassing cohabitation disputes, financial remedies and private children law. She has over 15 years’ experience and regularly handles cases that involve dealing with litigants in person. She is increasingly active in litigation relating to same-sex relationships.
Strengths: “She has very careful, meticulous preparation and clear advocacy. She is clear and precise in conference and inspires trust and confidence from clients. She’s always prepared to go the extra yard to get the case right.” “She’s an excellent advocate who gives strong sensible advice in children matters.”

Read more about the success of Magdalen Chambers rankings in Chambers and Partners 2020

Christopher Naish celebrates further success with ranking in Chambers and Partners 2020.

Chambers is delighted to congratulate Christopher Naish on his ranking in the Family/Matrimonial Department for Western (Bar) by Chambers and Partners 2020 (Band 1).

Christopher maintains a broad practice, acting for guardians, parents and local authorities on private and public children law matters, as well as being able to handle complex financial remedy cases. He is also proficient in disputes concerning trusts of land.
Strengths: “He’s excellent, really experienced and very good with clients. He’s very knowledgeable, down-to-earth and approachable.” “He is unflappable and calm in difficult cases, which inspires the confidence of his clients.”

Read more about the success of Magdalen Chambers rankings in Chambers and Partners 2020.

Rupert Chapman celebrates further success with ranking in Chambers and Partners 2020

Chambers is delighted to congratulate Rupert Chapman on his ranking in the Family/Matrimonial Department for Western (Bar) by Chambers and Partners 2020 (Band 2).

Rupert is recognised for his expert handling of cases involving complex matrimonial finance disputes and private law children matters. Many of his cases straddle multiple jurisdictions around the world. Strengths: “He has a very approachable, calm and pragmatic manner. He’s extremely knowledgeable and is an up-and-coming star.” “He gets to the heart of complex issues, advises clearly and is a formidable advocate with an unmatched knowledge of the law.”

Read more about the success of Magdalen Chambers rankings in Chambers and Partners 2020.

 

Parental consent and the deprivation of liberty of 16 and 17 year old children

On 26 September the Supreme Court gave judgement In the matter of D (A Child) [2019] UKSC 42. The case considers the scope of parental responsibility to consent to the living arrangements for children which would otherwise amount to a deprivation of liberty.

By way of background, D was born in 1999. He was diagnosed with attention deficit hyperactivity disorder, Asperger’s syndrome and Tourette’s syndrome, and has a mild learning disability. When he was 14 he was admitted to a hospital providing mental health services, for assessment and treatment. He lived in the hospital grounds and attended a school which was integral to the unit. The external door was locked and D was accompanied whenever he left the site. The hospital trust applied to the High Court for a declaration that it was lawful for the trust to deprive D of his liberty in this way. The judge, Mr Justice Keehan, held that D was so deprived but that it was a proper exercise of parental responsibility to consent to his constant supervision and control while he was under 16.

By then, with his parents’ agreement, and with Birmingham City Council (‘the Council’) accommodating him under s 20 Children Act 1989, D had been discharged from hospital to a residential placement, where he was similarly under constant supervision and not allowed to leave the premises except for a planned activity. On his 16th birthday proceedings were issued in the Court of Protection for a declaration that the consent of D’s parents meant that he was not deprived of his liberty at the placement. Keehan J held that his parents could no longer consent to what would otherwise be a deprivation of liberty once D had reached 16, and that the provisions of the Mental Capacity Act 2005 (‘MCA’) now applied. He authorised the placement, and a subsequent transfer to another similar placement, as being in D’s best interests. When D reached the age of 18 his deprivation of liberty could be authorised under the deprivation of liberty safeguards in the MCA.

The Council appeal to the Court of Appeal on the ground that parents could consent to what would otherwise be a deprivation of liberty of a 16 or 17-year-old child who lacked the capacity to decide for himself, and the MCA had no bearing on this. The Official Solicitor on behalf of D then appealed that decision. The Supreme Court by a majority of 3 to 2 allowed the appeal.

Lady Hale who gave the lead judgement set out that the issue turns on the inter-relationship between the concept of parental responsibility and the obligation of the State to protect the human rights of children under the European Convention on Human Rights.

Parental responsibility being defined in the Children Act 1989 as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property” (section 3(1)). “By law” obviously refers to the common law, but also includes those statutory provisions which give rights etc to parents, such as the Marriage Act 1949, which gives them the right to withhold consent to the marriage of a 16 or 17-year-old child (section 3).

She sets out that historically, parental rights under domestic common law were never absolute and became increasingly subject to the overriding consideration of the child’s own welfare. Quoting Lord Denning MR, In re Agar-Ellis (No 2) (1883) 24 Ch D 317, at 326:

“… the legal right of a parent to the custody of a child … is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice.”

She then considered the issue of ‘Gillick competence’ (Gillick v West Norfolk and Wisbech AHA [1986] 1 AC 112).  A case about whether it was lawful to give contraceptive advice and treatment to a child under 16 without her parent’s consent if she herself was capable of giving that consent. In that case the House of Lords concluded the earlier “age of discretion” cases had established the principle that children could achieve the capacity to make their own decisions before the age of majority. It was no longer, if it ever had been, correct to fix that at any particular age, rather than by reference to the capacity of the child in question.

Lady Hale commented that the MCA does not override other common law and statutory provisions relating to 16 and 17-year-old children, but it does indicate an appreciation of the different needs of this age group. She preferred to express her view on this issue by reference to the ECHR commenting; Article 5 ECHR protects children who lack the capacity to make decisions for themselves from being arbitrarily deprived of their liberty. Clearly the degree of supervision to which D was subject at the placements was not normal for a child of 16 or 17. D’s living arrangements had to be compared with those of children of the same age without disabilities, and the fact that they were made in his best interests did not mean he was not deprived of his liberty. Parental consent could not substitute for the subjective requirement under article 5 for valid consent to the deprivation.

She considered that the crux of the matter was whether the restrictions fall within normal parental control for a child of this age or do they not? If they do, they will not fall within the scope of article 5; but if they go beyond the normal parental control, article 5 will apply.

She concluded that Human rights are about the relationship between private persons and the state, and D’s deprivation of liberty in the placements was attributable to the state. There is no scope for the operation of parental responsibility to authorise what would otherwise be a violation of a fundamental human right of a child.

In her judgement, Lady Black considered that the Gillick case is not directly relevant to the issue before the court. It had to do with medical treatment and not with deprivation of liberty. It was concerned with whether a child might acquire the capacity, and the right, to make such decisions for herself before she reached the common law age of discretion, not with whether parental authority endured beyond that age if the child lacked the capacity to decide for herself. She was however careful to add “I do not intend in any way to water down the important changes brought about by Gillick or to alter the way in which it has been applied in many spheres of family law.”

Lady Black held however that as a matter of common law, parental responsibility for a child of 16 or 17 does not extend to authorising a confinement of the child in circumstances amounting to a deprivation of liberty.

 

William Hillier

Magdalen Chambers

October 2019

Chambers celebrates further success with rankings in Chambers and Partners 2020

We are proud and delighted to announce that Chambers continues in it’s success being recognised by Chambers and Partners 2020. Five members have also been individually ranked together with recognition for the clerking team for client service “The clerks are helpful and quick to respond.” “It’s a great chambers with a number of strong counsel and really helpful clerks.”

Employment

Nigel Moore (Band 3) – “His strength is his technical analysis – any work prepared by Nigel will show full consideration of all issues, no matter how small, yet he also delivers the advice in a manner which is clear and to the point.” “Nigel is extremely impressive in his speed at identifying the key issues in a case and for finding ingenious legal arguments in cases that may initially seem hopeless.”

Family/Matrimonial

Rupert Chapman (Band 2) – “He has a very approachable, calm and pragmatic manner. He’s extremely knowledgeable and is an up-and-coming star.” “He gets to the heart of complex issues, advises clearly and is a formidable advocate with an unmatched knowledge of the law.”

Carol Mashembo (Band 2) – “She has very careful, meticulous preparation and clear advocacy. She is clear and precise in conference and inspires trust and confidence from clients. She’s always prepared to go the extra yard to get the case right.” “She’s an excellent advocate who gives strong sensible advice in children matters.”

Christopher Naish (Band 1) – “He’s excellent, really experienced and very good with clients. He’s very knowledgeable, down-to-earth and approachable.” “He is unflappable and calm in difficult cases, which inspires the confidence of his clients.”

Planning

Gavin Collett (Band 2) – Well regarded for his expertise in planning law, with particular specialist knowledge in highways and rights of way. He acts for local authorities, as well as developers and private individuals. He is the head of the administrative and regulatory team at Magdalen Chambers.

Very well done to all involved!

Chambers and Partners 2020

Natasha Bellinger Ranked As A Leading Junior On The Western Circuit By The Legal 500

Chambers is delighted to congratulate Natasha Bellinger on her ranking as a leading junior on the Western Circuit by the Legal 500 in the area of Property Law. Natasha is rated as ‘a social housing specialist’, recommended for possession claims and other housing matters including exclusion orders, tenancy regulations, and anti-social behaviour.

Read more about Magdalen Chambers Ranking as Leading Set by the Legal 500 2020 here.

Russell James Ranked As A Leading Junior On The Western Circuit By The Legal 500

Chambers is delighted to congratulate Russell James on his ranking as a leading junior on the Western Circuit by the Legal 500 in the area of Property Law. Russell, head of Chambers’ civil team, is described by the Legal 500 as ‘an exceptionally gifted and hardworking counsel who is brilliant on his feet’ having ‘recently represented a tenant in the Court of Appeal, in a case involving a possession claim against the client’s fixed-term tenancy, which centred on the correct interpretation of sections 21(1A) and 21(1B) of the Housing Act 1988.’ He is recommended for possession claims and other housing matters including exclusion orders, tenancy regulations, and anti-social behaviour.

Read more about Magdalen Chambers Ranking as Leading Set by the Legal 500 2020 here.