Legal Updates

In June, the Appeal Court gave Judgment in the case of Brenda Lewis v Mark Gibson (2005), which is related to the case of MH, which is also summarised on this website.

In this case, Lewis appealed against a decision confirming an interim order which displaced her as nearest relative to her daughter MH who had Down’s syndrome. The Local Authority had assumed guardianship following displacement of Lewis.

The Appeal Court held in this case that: -

• In order for a Section 29 Application to succeed – and for a nearest relative to be displaced – the nearest relative must be shown to be “unreasonable” both at the time of the Application and at the time of the hearing.

• It is appropriate to use guardianship – as opposed to invoking the Courts inherent jurisdiction – where it is specifically the limited powers of guardianship that need to be used. However, there may come a time when much wider powers are required (for example, to prevent the patient from having contact with a relative) and the inherent jurisdiction would have to be used in such circumstances and a “best interest” declaration sought.

Also of interest was the fact that somewhat unusually the patient, MH, had been added as a party to the proceedings. The Court of Appeal welcomed this innovation and said that without it, there might have been a breach of M’s rights under Article 6 or Article 8 of the European Convention on Human Rights.

Adam Hartrick
Solicitor
Hempson's Solicitors