Emma Sutton KC

Expertise & Experience

Emma has considerable experience in constitutional law. Whilst studying for her Commercial Law Masters, she worked as a legal advisor for the Welsh Government within the Office of the Counsel General. Her role included drafting and amending statutory instruments, statute commencement orders, and undertaking parliamentary bill research. In practice, Emma has particular experience in health and social care, community care, mental health, and education. Her Public Law practice is complemented by her Education and Court of Protection practice.

Emma is frequently instructed in complex and unusual cases for and against public bodies and regularly advises on an urgent basis due to the issues involved. As Emma appears in cases in both England and Wales, she is able to comprehensively advise upon the evolving variances in the legal frameworks, and cross-border issues in the fields of health and social care, and education. Emma has been appointed by the Attorney General as a Special Advocate in cases of national security and sits part time as a Mental Health Tribunal Judge and Judge of the Court of Protection.

Court of Protection: Emma has appeared in several high-profile medical cases concerning life and death decisions of children and adults and also specialises in complex property and affairs cases, including disputes about the estates of well-known public figures in the UK and internationally. She is highly experienced in applications involving serious medical treatment for children and adults, the former under the inherent jurisdiction (particularly in cases involving eating disorders), unusual deprivation of liberty cases (including advising and obtaining damages and/or other relief), and in cases where there is an overlap between the MCA 2005 and MHA 1983. She is very experienced in all aspects of welfare disputes (including fluctuating capacity), and decisions including experimental treatment, covert treatment, sterilisation, contraception, sexual relations, internet and social media use, and marriage (including forced marriage). Emma is also regularly instructed in property and affairs disputes which include retrospective capacity issues, statutory wills, authority for “gifting”, and the appointment and removal of deputies and attorneys which include multi-million pound estates in the UK and abroad.

Public and Administrative law: Emma frequently advises and acts for and against public bodies in judicial review claims and contractual claims in the KBD in the fields of health and social care, mental health, and education (which regularly involve human rights issues), secretary of state determinations in respect of ordinary residence, and funding disputes between public bodies. Emma also has experience of acting as independent author in adult and child practice reviews (involving multi agencies) and has provided advice on a local and national level. Emma is currently instructed by a Safeguarding Board as the independent reviewer in a case concerning the death of a young child.

Education: Emma is instructed by Local Authorities, Governors, Headteachers, the Welsh Government, Charities, and parents in special educational needs disputes, discrimination claims (on the grounds of disability, race, and religious belief), school admission appeals (including legally advising the panel) and school exclusions in England and Wales. Emma also advises upon education outside school, school attendance, school organisation, school governance and finance, school closures, school staffing, and school transport.

Inquests and inquiries: Emma is experienced in representing parties in Article 2 inquests (including lengthy jury inquests); particularly in cases where the mental capacity and mental health of the deceased was in question prior to their death, or where they have been killed by persons known to mental health services, where allegations of neglect are raised, where significant criticism is raised against public authorities regarding their duties to children and vulnerable adults (in prisons and inpatient and community settings), and where there is national media interest.

Emma often undertakes work on a pro bono basis and completed the “25 for 25” Challenge which involved undertaking a significant number of hours of pro bono work through Advocate. Read more about this here.

Cases & Work of Note

(from the last 4 years: see individual practice pages for cases outside this period)

Re J (Transgender: Puberty Blocker and Hormone Replacement Therapy) [2024] EWHC 922 (Fam), Sir Andrew McFarlane, President of the Family Division
Instructed by the applicant father in a case concerning his child, J, a 16-year-old natal female who regarded himself as male. The issues for the court were whether J had capacity to consent to medical treatment in the form of cross-sex hormones (testosterone) from an unregulated internet provider, Gender GP, and even if he did, whether the court should nonetheless prevent such treatment by exercise of its inherent jurisdiction. A wider issue in the case concerned whether any treatment for gender dysphoria should have commenced without prior approval of the court. Due to agreement reached (that J would cease treatment pending assessment with a newly established UK clinic, Gender Plus), a determination was unnecessary. However, the President addressed the relevant legal framework and “urged any court faced with a case involving Gender GP to proceed with extreme caution before exercising any power to approve or endorse treatment that that clinic may prescribe”. The case continues. Please see here for the judgment.

Re AG (Welfare: Forced Marriage Protection Order) [2024] EWCOP 18, Theis J, Vice President of the Court of Protection
Instructed by the Official Solicitor on behalf of AG, a 24-year-old female, in a complex case involving multiple applications, including an application for a forced marriage protection order (brought by the local authority), an application under the inherent jurisdiction to restrict relations between AG and her parents due to coercion and undue influence (brought by the Official Solicitor), and for a determination of whether the circumstances of AG’s placement constituted a deprivation of her liberty for the purposes of Article 5 ECHR. In a detailed judgment, Theis J agreed with the submissions of the Official Solicitor on all contested points, and made a short term FMPO and IJ order and agreed that AG was not deprived of her liberty. The court also endorsed the “travel guidance” drafted by the Official Solicitor (as foreign travel remains a live issue) which will not only assist AG, but other parties in similar cases. The case continues. Please see here for the judgment.

Gregory v Nottingham University Hospital NHS Foundation Trust & Ors [2023] EWCA, Civ 1324, King LJ, Moylan LJ & Peter Jackson LJ
Instructed by the respondent Trust in an appeal by a father concerning the treatment of his child, Indi, aged 8-months-old, and the decision of Peel J that the removal of invasive mechanical ventilation should take place at a hospice and not at home. The appeal was complicated as the Italian Prime Minister had granted Indi Italian citizenship and a decree had been issued by an Italian consular official who had appointed a guardian and authorised Indi’s removal to Italy for treatment (contrary to the UK welfare decision). The Court of Appeal dismissed the appeal, highlighting that the grounds were responded to “concisely and compellingly”. The court also emphasised that it would “not tolerate manipulative litigation tactics” and that the “highest professional standards are rightly expected of lawyers practising in this extremely sensitive area”. Please see here for the judgment.

Gregory v Nottingham University Hospital NHS Foundation Trust & Ors [2023] EWCA Civ 1262, King LJ & Birss LJ
Instructed by the respondent Trust in an appeal by a father concerning the treatment of his child, Indi, aged 8-months-old, and the decision of Peel J that it was lawful for Indi’s treating clinicians to withdraw life sustaining treatment due to her incurable complex health difficulties, including a metabolic disorder that caused progressive damage to the brain, and the court being satisfied that her clinicians had exhausted treatment options in the UK and internationally. Permission to appeal was refused on the three grounds advanced. Please see here for the judgment.

Nottingham University Hospitals NHS Foundation Trust v Gregory & Ors [2023] EWHC 2566 (Fam), Peel J
Instructed by the applicant Trust for orders under the inherent jurisdiction that it was not in the best interests of a 7-month-old child, Indi, to continue to receive invasive medical treatment, due to there being no prospect of her recovering from her profound metabolic, neurological, and cardiological disorders, and as the multiple treatments were causing her pain with no discernible quality of life. The application was opposed by her parents. However, the declarations were granted following oral evidence. The court was ultimately satisfied that the burdens of invasive treatment outweighed the benefits, notwithstanding that the outcome of such declarations meant that Indi would sadly die. Please see here for the judgment.

St George’s University Hospitals NHS Foundation Trust v Casey & Ors [2023] EWHC 2244 (Fam), MacDonald J
Instructed by the Official Solicitor (in her capacity as Advocate to the Court) in response to a Part 8 claim by the applicant Trust for a declaration that Mr Casey, aged 20-years-old, had died following a catastrophic brain injury sustained following an assault, together with consequential declarations that it was lawful for doctors to withdraw ventilatory support. In addition to a consideration of the complex medical evidence, the Official Solicitor proposed guidance regarding the correct procedural and legal approach to applications of this nature. This is addressed at paragraph 61 of the judgment. The declarations were made. Please see here for the judgment.

Re IN (Withdrawal of CANH) [2023] EWCOP 32, Poole J
Instructed by the Official Solicitor (as litigation friend) on behalf of IN in response to an application of the Trust that it was lawful to withdraw clinically assisted nutrition and hydration, and for IN to receive palliative care only. IN had been assessed to have a lower awareness than a vegetative state and was in a permanent coma. IN was part of the Romanian Orthodox Church, and his family, who gave evidence from Romania, and another in the UK via an interpreter, opposed the application, primarily on religious grounds. At the conclusion of the oral evidence the Official Solicitor supported the application and submitted that the presumption to preserve life, on the specific facts, had been rebutted. Please see here for the judgment.

Gloucestershire Health & Care NHS Foundation Trust v FD & Ors [2023] EWHC 2634 (Fam), Francis J
Instructed by the applicant Trust for declarations and orders that it was not in FD’s best interests for active treatment against her wishes for her anorexia to be given under the MCA 2005 (it being submitted that she lacked capacity to make decisions regarding nutrition and hydration), and that FD’s treating clinicians were authorised not to take steps towards providing FD with nutrition and hydration by force under the MHA 1983. The court granted the application, principally as FD regarded her existence as “torture”, knowing that granting the relief could have fatal consequences. Please see here for the judgment.

North East London NHS Foundation Trust v Beatrice & Edward [2023] EWCOP 17 (No 1 – capacity), Mostyn J
Instructed by the Official Solicitor (as litigation friend) on behalf of Beatrice in an application concerning whether she had capacity to make decisions about her nutrition and hydration. Beatrice had a longstanding history of anorexia nervosa. If she had capacity, it was lawful for Beatrice to refuse treatment designed to achieve weight gain without which she would die. The court agreed with the position advanced by the Official Solicitor that Beatrice lacked subject matter capacity and was unable to conduct proceedings. The court concluded by stating that “this has been a very disturbing case to hear. If anyone needs proof that the Family Division judges sitting in, and the professionals who practise in, the Court of Protection and High Court hearing cases of this type have to do the most difficult, demanding, stressful, and draining work that the law requires to be done in any field, then they only have to read this judgment”. Please see here for the judgment.

North East London NHS Foundation Trust v Beatrice & Edward [2023] EWCOP 60 (No 2 – best interests), Mostyn J
Instructed by the Official (as litigation friend) on behalf of Beatrice in an application concerning whether it was in her best interests to be forcibly fed against her wishes to achieve weight gain. Beatrice did not want to die, but also did not want her suffering to continue. Her father wanted active treatment to continue. In addition to the MCA 2005, the court considered Articles 2, 3 and 8 ECHR and agreed with the Official Solicitor that on the particular facts, respect should be given to Beatrice’s very strong opposition to compulsory feeding and treatment should not be forced upon her. Please see here for the judgment.

NHS Surrey Heartlands Integrated Care Board & JH [2023] EWCOP 2, Hayden J
Instructed by the applicant ICB for a declaration pursuant to section 26(4) MCA 2005 that JH had made a valid advance decision which applied to any invasive test or treatment (including life sustaining treatment), and that those treating JH did not incur liability for the consequences of withholding such tests or treatment from JH. JH was malnourished and would likely die without additional nutrition and hydration, which he was refusing. The court found that the advance decision was valid and as the Suicide Act 1961 decriminalised the act of suicide, JH was entitled to end his own life and should not be forced to engage in treatment against his will. The declarations sought were made. Please see here for the judgment.

R (on the application of Isherwood et al) v The Welsh Ministers [2022] 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.

Newcastle Upon Tyne NHS Foundation Trust v MB (by his litigation friend, the Official Solicitor) [2022] EWCOP 43, Morgan J
Instructed by the Official Solicitor (as litigation friend) on behalf MB in response to a serious medical treatment application where declarations and orders were sought under the MCA 2005 for treatment in the form of high dose methotrexate under sedation in a critical care setting relating to a very rare type of cancer (T-cell lymphoma affecting the brain, skin and bone marrow). A number of clinicians and experts gave evidence over two days due to the significant risks to MB’s physical and mental health of a prolonged period of sedation in circumstances where a diagnosis of cancer had not yet been made, and where the treatment was not curative. The treatment plan was unique, but was ultimately approved due to the prospect of such treatment improving MB’s executive functioning. Please see here for the judgment.

Hinduja v Hinduja & Ors [2023] EWCOP 37, Hayden J, Vice President of the Court of Protection
Instructed as junior counsel on behalf of the first and second respondents in response to an application by G Hinduja for a stay of the implementation of a reporting restrictions order made in the course of property and affairs and health and welfare proceedings in the Court of Protection, pending an appeal to the Court of Appeal. A stay of only 48 hours was granted. Please see here for the judgment.

North West Anglia NHS Foundation Trust v BN & Anor [2022] 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.

Manchester University NHS Foundation Trust v William Verden (by his litigation friend, the Official Solicitor) et Ors [2022] EWCOP 9, Arbuthnot J
Instructed by the Official Solicitor (as litigation friend) on behalf of William Verden, age 17, in a case concerning whether it was in William’s best interests to have a renal transplant, without which he would die. William had diagnoses of learning disability, autism and ADHD. The case involved complex legal and medical issues (including the risks associated with extended post operative sedation and ventilation), with wider issues of public importance as to how transplant decisions are made for those lacking capacity. The court agreed with the arguments put forward on William’s behalf, ultimately accepting that the presumption in favour of treatment which prolonged life had not been rebutted. There was significant public interest in this case. It was widely reported and commented on, including live ‘tweeting’ from court. Please see here for the judgment.

Royal Free London NHS Foundation Trust v AA & Anor [2021] EWCOP 68, Knowles J
Instructed by the Official Solicitor (as litigation friend) on behalf of AA in response to an application by a treating Trust which sought to withdraw life sustaining treatment due to AA’s irreversible brain damage. The preliminary issue before the court, however, was whether the UK or Pakistani courts had jurisdiction. The family argued that the Pakistani courts had exclusive jurisdiction having obtained a legal opinion from a former Pakistani judge. The court, however, accepted the submission of the Official Solicitor that AA was habitually resident in the UK (per paragraph 7(1)(a) or 7(1)(c) of schedule 3 MCA 2005) and that urgent relief was needed as the family sought to transfer AA to Istanbul and then Karachi by air ambulance following the hearing. The court also rejected the submission of the family that the Official Solicitor was not independent. Please see here for the judgment.

Great Ormond Street Hospital for Children NHS Foundation Trust & Ors v MBC & Ors [2021] 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 her 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.

Manchester University NHS Foundation Trust, v KM (by his litigation friend, the Official Solicitor) & TM et Ors [2021] EWCOP 42, Keehan J
Instructed by the applicant Trust in a case where declarations and orders were sought under the MCA 2005 regarding the withdrawal of life-sustaining treatment concerning KM, a 52-year-old male, placed on an extracorporeal membrane oxygenation machine for 4 months, having suffered a cardiac arrest and contracted Covid-19. The application was vehemently opposed by KM’s family who expressed deeply held religious beliefs as Pentecostal Christians that God would intervene. Having heard expert evidence, clinical evidence and evidence from KM’s family and Pastor, and having described the application as “a very tragic and very sad case”, the court made the declarations sought. Please see here for the judgment.

University Hospitals Dorset NHS Foundation Trust, Dorset Healthcare University NHS Foundation Trust v Miss K (by her litigation friend, the Official Solicitor) [2021] EWCOP 40, Lieven J
Instructed by the applicant Trust in an urgent case where declarations were sought under the MCA 2005 that it was in Miss K’s best interests to undergo an elective caesarean section the following morning. Miss K was detained under the MHA 1983 and was thought to have capacity to make decisions regarding her obstetric care until shortly before the application was made; at which time, she was unable to effectively engage in conversations regarding her birth plan. Whilst the order sought was made, the court impressed the need for Trusts to bring applications of this nature in a timely manner. Please see here for the judgment.

An NHS Foundation Trust v ZA (by her litigation friend, the Official Solicitor) [2021] EWCOP 38, Cohen J
Instructed by the Official Solicitor on behalf of ZA, a 53-year-old women, in a case where the applicant Trust sought an order that it was in ZA’s best interests to undergo an above the knee amputation of her right leg due to chronic osteomyelitis and potential sepsis. This was opposed by the Official Solicitor (notwithstanding expert and clinical evidence to the contrary) due, in particular, to ZA’s clear and consistent objection, including at a time when she was capacitous. The court agreed and the application of the Trust was refused. Please see here for the judgment.

Chesterfield Royal Hospitals NHS Foundation Trust & Derbyshire Healthcare NHS Foundation Trust v TS (by his litigation friend, the Official Solicitor) [2021] EWCOP 41, Peel J
Instructed by the applicant Trusts regarding the proposed fitting of a pacemaker for TS’s heart block, it being asserted that TS lacked capacity to do so due to a delusional disorder. An order was sought that it was in TS’s best interests for a pacemaker to be fitted and to authorise the deprivation of TS’s liberty that was likely to arise due to his objection to the proposed procedure. The application was granted and the court praised the legal teams involved for the careful preparation of the case. Please see here for the judgment.

Andrew James Riddle v Public Guardian [2021] EWCOP 38, Lieven J
Instructed by the respondent in an application for permission to appeal the two judgments of Her Honour Judge Hilder reported as The Public Guardian v Andrew Riddle (No.1) and (No.2) [2020] EWCOP 41 which considered 40 cases in which the appellant sought (but was refused) authority to charge fees at solicitor rates or a specified rate. Four grounds of appeal were raised, each ground was opposed by the respondent, and the court ultimately agreed that none of the grounds gave rise to a reasonable prospect of success, and that there was no other compelling reason why the appeal should be heard. Permission to appeal was therefore refused. Please see here for the judgment.

A Midlands NHS Trust v RD (by her litigation friend, the Official Solicitor) et Ors [2021] EWCOP 35, Moor J
Instructed by the Official Solicitor on behalf of RD, a 37-year-old woman suffering from a severe form of anorexia nervosa. The Trust brought an application which sought declaratory relief that it was lawful not to take any steps towards forcing nutrition against her wishes, notwithstanding that by so doing, it might prevent her death. The application accorded with RD’s wishes and feelings and was not opposed by the Official Solicitor subject to certain changes being made to the care plan. The court made the declarations sought under the MCA 2005 and pursuant to the inherent jurisdiction of the High Court. Please see here for the judgment.

A Mental Health Trust v ER (by her litigation friend the Official Solicitor) & An NHS Foundation Trust [2021] EWCOP 32, Lieven J
Instructed by the applicant Trust in a case described by the court as a “particularly sad case” regarding the withholding of life sustaining medical treatment in the form of clinically assisted nutrition and hydration to a patient, ER, who had a long standing diagnosis of anorexia nervosa. The Trust did not seek to treat ER against her will (via the MCA 2005 or the MHA 1983), with the consequence that she would sadly die. ER had capacity to make decisions regarding other physical health needs and the court was concerned to ensure that ER’s capacity to make decisions regarding treatment for her anorexia was properly analysed. The court ultimately accepted the clinical and expert evidence that ER lacked capacity. Please see here for the judgment.

A Teaching Hospitals NHS Trust v DV (A Child) [2021] 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.

X NHS Foundation Trust & Y NHS Foundation Trust v Miss A [2021] EWCOP 17, Cohen J
Instructed by the applicant Trusts for declarations and orders under the MCA 2005 regarding the obstetric care of Miss A who was 38 weeks pregnant and detained under the MHA 1983. Miss A had a diagnosis of paranoid schizophrenia and was unable (as a consequence) to make decisions regarding her obstetric care. Although Miss A wanted a home birth and was strongly opposed to an elective caesarean section, the court agreed that a vaginal breech birth was not in her best interests due to the high risk that this would result in an emergency caesarean section, and as Miss A’s mental health difficulties were likely to prevent her from engaging in the demands of a natural birth. Having heard oral evidence from the obstetrician and psychiatrist, the court approved the applicant’s treatment plan. Please see here for the judgment.

The Newcastle Upon Tyne Hospitals NHS Foundation Trust v Robert Bourn (by his litigation friend Sharon Bourn) [2021] EWCOP 11, Lieven J
Instructed by the applicant for declarations and orders under the MCA 2005 regarding whether it was in the best interests of the respondent, Robert Bourn, to receive modified chemotherapy (Carboplatin + Etoposide) for metastatic germ cell cancer. The proposed treatment was not “first line” treatment for a patient with Mr Bourn’s diagnosis and young age, and as there was a difference of clinical opinion, a technical exploration of why an alternative regime was considered to be in his best interests was required. Having heard oral evidence from three clinicians, the court approved the applicant’s treatment plan. Please see here for the judgment.

UR (by her litigation friend, the Official Solicitor) v Derby City Council and NHS Derby and Derbyshire Clinical Commissioning Group [2021] EWCOP 10, Hayden J, Vice President of the Court of Protection
Instructed by the Official Solicitor (as litigation friend) on behalf of UR, a lady with longstanding complex mental health difficulties, in a case which originated as an application under the MCA 2005 regarding the administration of medication, nutrition and hydration via a PEG tube. The case culminated in an application regarding UR’s residence; specifically whether it was in her best interests to return to Poland to live with her family. The Vice President addressed the issue of whether UR could leave the jurisdiction due to the Covid-19 pandemic (with reference to the associated Regulations), and gave guidance for future cases involving the permanent relocation from the UK. The court determined that it was in UR’s best interests to return to Poland. Please see here for the judgment.

University Hospital of Derby and Burton NHS Trust & Derbyshire Healthcare NHS Foundation Trust v MN (by his litigation friend, the Official Solicitor) [2021] EWCOP 4, Hayden J, Vice President of the Court of Protection
Instructed by the applicants in an urgent case concerning life sustaining medical treatment for MN who had an obstruction in his kidney, suspected to be bladder cancer. CT examination and cystoscopy procedures were necessary and were due to be performed 4 days later. As a consequence of the severe restriction on the number of beds available for elective surgery due to the Covid-19 pandemic however, medical treatment could not be provided until March 2021. The main issues related to the application for an adjournment and whether the court should, on an interim basis, make orders regarding emergency treatment (including with restraint). The adjournment was allowed, and the interim orders made on the basis that certain conditions were satisfied. Please see here for the judgment.

Great Ormond Street Hospital for Children NHS Foundation Trust v MK (by her litigation friend, the Official Solicitor) [2020] 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.

Essex County Council v CVF (by her litigation friend the Official Solicitor), JF and Essex Partnership University NHS Foundation Trust [2020] EWCOP 65, Lieven J
Instructed by the Local Authority in a multifaceted / hybrid application regarding the personal welfare and property and affairs of CVF, a young person, who had complex needs arising from a learning disability and emotionally unstable personality disorder. The court agreed with the position of the Local Authority and made the welfare order sought in respect of CVF’s care and support needs, appointed the Local Authority as CVF’s deputy for property and affairs, and dismissed JF’s personal welfare deputyship application. Please see here for the judgment.

University Hospitals of Leicester NHS Trust v TC (by her litigation friend, the Official Solicitor) et Ors [2020] EWCOP 53, Cobb J
Instructed by the applicant Trust in a case concerning life sustaining medical treatment, and in what the court described as a “distressing and worrying case”. TC had advanced cancer of the larynx and without urgent treatment would die. The plan was for a prolonged period of treatment (at least 6 weeks) and the court was required to balance the presumption that it was in TC’s best interests to stay alive against her likely opposition, the restrictive nature of the plan, and the serious effect the treatment would have on TC’s profound depression. The court held that it was in TC’s best interests to be treated by way of chemoradiotherapy and to undergo endoscopic resection and/or a tracheostomy in accordance with the treatment plan. Please see here for the judgment.

Re ND (Court of Protection: Costs and Declarations) [2020] EWCOP 42, Keehan J
Instructed by the Official Solicitor (on behalf of ND) 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.

The Public Guardian v Andrew Riddle (Nos 1 and 2) [2020] EWCOP 41, Senior Judge Hilder
Instructed by the Public Guardian in a legally and procedurally complex case involving 40 individuals where the court had to consider the ability of a non-solicitor professional deputy to charge fees at solicitor rates. Guidance was provided regarding the circumstances in which solicitor rates would apply, how VAT liability should be addressed, and how authority for Independent Visitor costs should be sought. In every case, the court refused the applications of Mr Riddle for authorisation to charge fees at solicitor rates, refused his applications for relief from liability for past charging, and refused his subsequent application for a costs order against the Public Guardian. Please see here for the substantive judgment, and here for the costs judgment.

Avon and Wiltshire Mental Health Partnership v WA & Anor [2020] EWCOP 37, Hayden J
Instructed by the Official Solicitor (in her capacity as Advocate to the Court) to assist in the complex moral, ethical and legal issues the case presented. The court was asked to determine whether a young Palestinian man, WA, had capacity to make decisions about his nutrition and hydration and, if he lacked capacity, what would be in his best interests. The factual matrix, including his reasons for wanting to die (which related to a dispute with the Home Office regarding his age) and the decision regarding his capacity was exceptionally complex. The court concluded, in what was described as a “challenging exercise” that WA lacked capacity to make decisions about his nutrition and hydration, but that it was not in his best interests for forced naso-gastric feeding to be carried out without his agreement due (in particular) to his past history of abuse and torture. Read more about the case on our UK Medical Decision Law Blog. Please see here for the judgment.

TH (Property and Affairs Deputy) v PB (by her litigation friend, CR) [2020], Russell J
Instructed to represent PB (by her litigation friend) in an application brought by a professional deputy who sought to withhold PB’s decree absolute and order that PB return to the UK (from Jamaica) having travelled on the premise of getting married. The issues for final hearing were (i) PB’s capacity to make decisions regarding finances, make a Will/ revoke her existing Will, and to marry, and (ii) PB’s application to remove the deputy. The court agreed that the expert evidence was insufficient, held that PB was capacitous in all areas save for finances, and appointed a new deputy due to PB’s breakdown in the relationship with the existing deputy.

A Healthcare and B NHS Trust v CC (by his litigation friend, the Official Solicitor) [2020] 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.

Recommendations

Emma has been consistently recommended by the legal directories (Chambers & Partners and The Legal 500) as a leading junior. She is recommended for public & administrative law, Court of Protection (Band 1), education, and inquest and inquiries work. Recent editorial includes the following:

• Emma is an exceptional advocate;
• her knowledge of the legal frameworks used in the COP is encyclopaedic;
• technically brilliant;
• whenever I instruct her I have complete confidence that the case will be handled exceptionally;
• is tenacious, detailed, thorough, confident, an exceptional advocate and argues a point well and, if required, fiercely;
• has the respect of the judges;
• a very robust advocate who misses nothing;
• meticulous and reliable barrister;
• very able, hard-working and bright;
• an immense knowledge of the law;
• is an exceptional advocate;
• she is always extremely well prepared;
• Emma is masterful at case management; 
• a go-to lawyer for thorny issues;
• very responsive and brilliant with clients;
• her popularity as a practitioner is evidenced by the large proportion of work she receives as a result of repeat instruction;
• an excellent manner with all parties in proceedings;
• very practical and tactical advice;
• firm, fair and articulate with extensive knowledge of the law;
• extremely meticulous, knowledgeable, and a fearless advocate;
• a tenacious advocate with highly tuned negotiation skills;
• she leaves no stone unturned;
• an impeccable court manner;
• she has a great ability to cut through complex issues to achieve the best outcome for her clients;
• she is so meticulous and precise;
• her attention to detail is just incredible;
• her workload includes judicial review and advisory work;
• extremely approachable;
• she has the ability to distil issues in cases quickly and effectively;
• her preparation is absolutely meticulous;
• her attention to detail is like no other;
• fierce when she needs to be;
• her preparation and the amount of work she puts in is phenomenal;
• a very knowledgeable and experienced Court of Protection practitioner;
• an excellent advocate;
• her advocacy is excellent;
• clear and helpful advice provided at all times;
• great technical skills in terms of written legal advice and orders;
• very dedicated, so she knows the papers inside out;
• she’s very well organised;
• a tough negotiator;
• she prepares cases to a very high level of detail;
• committed and pragmatic;
• excellent with lay clients;
• user-friendly and supportive;
• very prompt to respond to any questions;
• she has the ability to distil issues in cases quickly and effectively;
• adept in acting for and against local authorities;
• extremely meticulous, knowledgeable, and a fearless advocate; and
• developing a formidable reputation at the Court of Protection.

Publications

• Medical Treatment: Decisions and the Law, Bloomsbury Professional, Fourth Ed., 2022. Emma co-authored chapter six: Procedure – Going to Court and chapter thirteen: Feeding in the fourth edition of the book Medical Treatment: Decisions and the Law, edited by Christopher Johnston KC and Sophia Roper KC and written by 27 members of Serjeants’ Inn.

Articles

• Emma has drafted commentaries for the Medical Law Reports for a number of years; most recently having reported upon the case of Wessex Fertility Limited & Ors [2024] EWHC 587 (Fam)
• Emma was featured in the 20^th Anniversary Commemorative of the Human Rights Lawyers Association (2023) which provided “insights from distinguished lawyers and human rights advocates”
• Emma has written articles for The Lawyer, Local Government Lawyer, Public Law Today and has provided practical guidance which has been used in practitioner training sessions, including 360 Degrees Training Ltd (for example, regarding who can consent to a deprivation of liberty for children and young persons)
• Emma has reported on a number of Court of Protection authorities which have been published by Community Care Inform

Seminars

• Emma regularly provides bespoke training to solicitors and professional clients; particularly in relation to NHS and Local Authority duties, with a focus on mental health, mental capacity, education and commissioning. Emma is also regularly invited to speak at larger conferences in her specialist areas, recently speaking at TL4 & ConTrA Private Client Summer School in Cambridge University

Appointments

• Fee-paid Judge of the Court of Protection (South West region) (2023 to date)
• Fee-paid Judge of the First-tier Tribunal (Health, Education and Social Care Chamber) (2021 to date)
• Fee-paid Employment Judge of the Employment Tribunals (England & Wales) (2021-2024)
• 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) (2008)
• Gray’s Inn Advocacy Trainer (2021)
• Gray’s Inn Mentor (2021)

Awards

• Bedingfield Scholar (Gray’s Inn)

Qualifications

• LL.B (Hons) Law and Sociology, 2.1, Cardiff University
• LL.M Commercial Law, Distinction, Cardiff University. First class grades in all subjects studied (Intellectual Property, Industrial Property, Insurance Law and International Contract Law)
• BVC (Very Competent), Cardiff University. Outstanding in Advocacy, Drafting and Legal Research modules

Memberships

• Court of Protection Barristers Association (Secretary: 2021-2024, Executive Committee: 2024 to date)
• Court of Protection Practitioners Association (CoPPA) Cymru (Chair: 2021 to date)
• Human Rights Lawyers’ Association (Executive Committee: 2019-2022)
• Constitutional & Administrative Law Bar Association
• Public Law Wales Association
• CoPPA (National)

Reflections

There are lessons to learn from every case and I strive to continually develop new skills. To reflect and improve as a barrister is essential for both individual growth and client satisfaction. A very wise Judge (now retired from the Supreme Court) once told me that they continued to learn something new each day which is a constant reminder that despite what I think I have grasped, there is always room for improvement.

The ‘rule of 3’: irrespective of the particular intricacies of a case, I always strive to breakdown the legal arguments into clear parts, and in so doing, remind myself of the principle that the reader (whether a client or a Judge) is more likely to absorb and be persuaded by information if set out in a short and succinct manner and without legal jargon.

“it is essential not to neglect the human story behind the case and to remain compassionate in what are often very sensitive cases.”

Being a good lawyer is often about seeing the bigger picture outside of a particular set of facts and being able to advise upon wider strategies. I am most proud of the cases in which practice and procedures have been amended as a consequence of advice given and which has brought about positive change beyond the facts of an individual case.

It’s essential to work as part of a team right from the outset of a case in order to maximise the skills of all involved. This is applicable for all cases, but particularly when representing professional clients who I regard as the specialists, and in which I see my role as weaving the legal framework around the issues to present the best possible case – having regard to what the client actually wants to achieve.

The human side of a case must never be overlooked and whilst there is an obvious need to focus on the applicability of rules and legislative provisions in public law challenges, it is essential not to neglect the human story behind the case and to remain compassionate in what are often very sensitive cases. This is critical whether acting for or against a public body as all parties involved in such cases are, ordinarily, well-intended.

I’m excited about the continual development in the areas of law in which I am fortunate enough to practice and how new and creative arguments can be developed and presented. It is the cases where there is no clear right or wrong answer that I most enjoy as original ideas can be advanced and the cross over between the evolving areas of law in which I practice often allows me to identify broader arguments.