Liberty Protection Safeguards Scheme

Coronavirus, Contact, Liberty and Equality

Our Court of Protection Teams latest Human Rights Case - Coronavirus, Contact, Liberty and Equality.

This case is published here: - https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCOP/2020/17.html&query=(BP)+AND+(v)+AND+(surrey)+AND+(county)

Mr Justice Hayden, Vice President of the Court of Protection, yesterday, released his judgement on our application, which was brought to the High Court last week, in response to the Coronavirus pandemic. We asked that the court consider whether the blanket ban implemented by the care home is an infringement of our client’s Articles 5 and 8 European Convention on Human Rights (ECHR). Articles 14 and 15 ECHR were also discussed in considering derogation and duties under the Equality Act 2010, that being the duty to make reasonable adjustments. The application was brought by our client’s daughter in her capacity as litigation friend, on behalf of her 83 year old father who suffers with Alzheimer’s dementia and is profoundly deaf. Mr Justice Hayden has directed that care homes must ensure ‘effective communication’ with the family, and that care homes should use all creative options to achieve such effective communication. In this case, it was agreed that visits by the family should take place by way of them communicating with ‘P’ from outside of his bedroom window. At Bison Solicitors, we are passionate that during these unprecedented times that any unlawful infringements on a person’s Human Rights should be subject to challenge

Counsel was Alison Harvey of No5 Barristers' Chambers. The team from our CoP department was Stephanie OxleyKate Churchouse and Bethany Waldron.


Child Custody - Your Rights & Responsibilities

Child Custody in the UK – What Are Your Rights and Responsibilities?

It’s first important to understand that whilst the term “custody” is the most commonly-used and well-known terminology around the contact with and care of a child, courts no longer refer to it in this way. “Custody” has had many names, including residency and contact orders, but courts now refer to all contact with a child as a “Child Arrangements Order”. The term “custody” is now rarely used within legal proceedings.

The equivalent of having custody of a child now would be to have a “live with order”; the other parent would have a “spend time with order”. These orders both come under the term “Child Arrangements Order”. However, for the purpose of this blog we will continue to use the term “custody”.

As you can see on our Child Law page, courts follow the Welfare Checklist when it comes to determining child custody. Family law and those who interpret it are rightly mainly concerned with the well-being, rights, wishes and feelings of the child above all else. The central point of any Child Arrangements application is “the welfare of the child is paramount”.

However, it’s important to fully understand what rights you have as a parent, what the law is regarding custody, and what you can do to help influence decisions that a court might make.

Knowing not just your rights but your responsibilities can also be a major factor in preventing disputes with your ex, and in keeping the whole process as amicable as possible.

What the law says

The 1989 Children Act defines parental responsibility as follows:

“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.”

The mother automatically has parental responsibility and won’t lose it even if divorced. If the father was married to the mother when the child was born then he has parental responsibility as well. Following the change in the law, for children born after 1 December 2003, a father will also have parental responsibility if he is named on the birth certificate, even if he wasn’t married to the mother. And the father has it if he, or he and the mother, registered a parental responsibility agreement with the court or there was a court order.

If both parents are deemed to have responsibility then neither the mother nor the father have the automatic right for their child to live with them. In the past, the courts more often favoured the mothers, but with men often now more involved with childcare and more women working, courts often see joint custody as the way forward.

Even so, many fathers, rightly or wrongly, believe that they mothers will automatically be looked on more favourably after as separation or divorce. There’s also currently a campaign to change the law to bring in a legal assumption that the mother and father will share parenting of their child or children.

In the meantime, whether you’re a mother or father, it’s important that you get child custody advice at an early stage rather than waiting until the situation becomes complicated or acrimonious.

Our child law solicitors appreciate that every case is different. We will always listen carefully to what your situation is, along with your needs and wishes, in order to provide you with guidance on the best way forward.

Parental responsibility – agreements and orders

There are many other legal issues around the issue of parental responsibility. For example, just because you don’t have it doesn’t mean you’re absolved of all responsibilities towards your child – you may well have a duty of care in the form of child maintenance. You have rights too – for example, to apply for certain court orders.

Unmarried fathers can also, with the consent of the mother, obtain a Parental Responsibility Agreement that gives you parental responsibility.

If the mother refuses to allow the unmarried father to be registered or registered on their child’s birth certificate, or refuses to sign a Parental Responsibility Agreement, then he can apply for a Parental Responsibility Order.

Child custody legal advice – book a free consultation

As you can see, the law is complex and there are many variables that need to be taken into account. We’re here to help you clarify your options, and to decide the best path to take. That’s why we offer a free initial consultation of 30 minutes with one of our child custody lawyers. (Follow the link to view our Family Law team)

Our main office is in Aldershot, Hampshire, but we also have offices in Manchester, Cambridgeshire, the Isle of Wight and Somerset – whichever is most convenient for you.

To book your consultation, please email info@bisonsolicitors.co.uk or call 01252 268 168.


Fresh start through divorce or separation with Bison family solicitors in Aldershot

Our Family Lawyers can Help You Make a Fresh Start in the New Year

As well as being a time for celebration, Christmas often offers a period of reflection – on relationships as much as anything.

For some, family tensions can come to a head at this time of the year, for a number of reasons.

One is that couples tend to be in close proximity throughout the Christmas period. It’s less easy at this time to live more-or-less separate lives, and there’s the absence of distractions such as work or school. The presence of in-laws or other family members can also prove difficult for many.

Another is the financial strain, with December being an expensive month, what with the cost of presents, food, drink and entertaining.

Many of us also over-indulge at Christmas – and excess alcohol is frequently a factor in marital strife.

Some people, particularly those with children, will wait until after the celebrations are over to avoid spoiling Christmas itself. But they will be looking to make a change as soon as possible afterwards. After all, the turn of the year is traditionally a time for resolutions and for fresh starts.

For all these reasons, it’s therefore not surprising that divorce rates soar at the beginning of the new year.

Divorce and Separation – Your Options

The main reason cited for divorce is ‘unreasonable behaviour’. This generally refers to a spouse’s actions over a prolonged period. Other legally-recognised grounds for divorce are adultery, five years’ separation (or two years’ separation if agreed by both parties), or two years’ desertion. (Desertion can be difficult to prove - it might be easier to use unreasonable behaviour or say you’ve lived apart for 2 years). In addition couples must have been married for at least a year before they can divorce.

However, divorce is not the only option. Many people opt for a trial separation to begin with. A separation can be recognised in law as well. You can also avoid legal proceedings completely, at least to begin with, and opt for a separation agreement, which we can help you draft. Please note that while a separation agreement can be legally persuasive, it’s not binding upon the court until it has been formalised into a consent order.

If you’re cohabiting rather than married, you have certain rights if you split up, although not as many as if you were wed. If you’re in a civil partnership, then you will benefit from broadly similar rights to being married.

If you have children, then our child family law professionals can assist in legal advice and arrangements concerning their welfare.

Whatever your status and whatever you’re considering, we can advise you on your options. We can advise you on the personal and financial side, as well as possible agreements you might want to make.  More information is on our Divorce and Separation page

Getting an injunction against a family member

The holiday period can also be the setting for a further dark shadow – domestic abuse. Those who are already separated or divorced will often feel particular stress at being away from their children or former partner. Even if you are still together, factors such as enforced close proximity, alcohol or financial issues can lead to abusive incidents.

Our family law team can help you obtain a suitable injunction – either an Occupation Order or a Non-Molestation Order. These are available to both married and unmarried individuals. For details, please see our Family Court Injunctions page

A Free Consultation

Bison Solicitors offers a free half-hour consultation with a specialist family lawyer if you are considering a separation or divorce. We’re based in Aldershot, Hampshire, with several offices elsewhere in the UK.

We appreciate that every person and every relationship is different, so our first task will be simply to listen.

Then we can help you consider your next steps at a difficult time. Even if your new year isn’t particularly happy right now, we can help you find peace and happiness in the months and years to come.

If you need a fresh start then book your free consultation, please email info@bisonsolicitors.co.uk or call 01252 268 168.


Brexit and Your Legal Status in the UK

Brexit and Your Legal Status in the UK – What Next?

The election of the Conservative government and its large majority means that Brexit is due to leave the EU on 31st January, 2020. The exact shape of Brexit and the potential deals involved is likely to occupy the government for much longer.

In the meantime, the situation for people living in the UK who aren’t British citizens is going to remain similarly uncertain for some time to come, with the possibility of a no-deal Brexit further muddying the waters.

Immigration and residency issues

Whether you’re looking to come and live or work in the UK, or are already here, post-Brexit immigration law and your rights are still far from settled. The issues regarding registration requirements are likely to be particularly complex.

At present, a points-based system regulates immigration from outside the European Economic Area (EEA), which consists of EU and other European countries. The government has been proposing a new Australian-style points system, but the nature of this has so far yet to be made clear.

Speculation and leaks have suggested that, in some ways, the system will be similar to the current points-based system. You can view this on our Immigration Law page.

Tier 1 (highly-skilled migrants) will remain broadly similar.

Tier 2 (skilled migrants) will instead be ‘skilled workers’ and in most cases will require a specific job offer.

Tier 3 (low-skilled workers) has already been abolished under the current system. Tier 4 (students) and Tier 5 (temporary workers) will be ‘sector-specific rules-based’ – in other words planned centrally to match demand from specific areas of the economy.

But at the moment, nothing has been formally announced.

Rights for workers is another complex issue that’s likely to become only more complicated in the months ahead. That’s the case whether you work in an EU country, are an EU citizen working over here, or are an employer of EU nationals.

Whatever happens, you can be sure that our professional Brexit solicitors will be here to clarify, advise and, above all, help.

Brexit and Family Law

Currently, there’s no agreement for European family law legislation to continue on a reciprocal basis between EU member states and Britain after withdrawal takes place.

There are many issues that could potentially arise after Brexit if you are divorcing or separating and one of you has connections with an EU state.

Here are just a few questions that could arise with a no-deal Brexit:

  • How will a maintenance order be enforced if my former spouse or partner lives in an EU country?
  • In what ways will Brexit affect my prenuptial agreement?
  • What protections will I have if my ex moves to an EU country and wants to take the children there?
  • If my partner is from an EU country, where will a divorce take place? Will there have to be duplicate proceedings or will a UK divorce suffice?
  • Will my same-sex marriage or civil partnership be recognised by EU states after Brexit?
  • I’m from an EU member country. What rights do I have to stay in the UK after my divorce from a British citizen?

Our family law team will be able to advise you on these and other issues related to Brexit. For more information, see our Family Law section.

Softening the impact of Brexit

The cost of Brexit and its financial impact, positive or negative, will be debated for many years to come. But we believe that whatever happens, those at the sharp end should not suffer unduly, whether from uncertainty or financial loss. That applies to whether you need professional advice, or are making a UK visa application, or anything else related to Brexit.

Most of our work is funded by legal aid, and, for private clients, you’ll find that our fees are substantially lower than those charged by most other law firms. We’re based in Aldershot, Hampshire, and have offices all over the UK, which means we can likely help you wherever you are.

For more details, please call +44 (0)1252 268 068 or fill in our contact form.


Ancestry Visa

Ancestry Visas – A Little-known Route to Living and Working in the UK

The discussions surrounding Brexit have often focused on the matter of passports and citizenship. It is well-known that if you have Irish grandparents then you qualify for an Irish passport. The number of applications for Irish passports/citizenship via the ancestry route have rocketed over the past couple of years.

What is not so well known is the “ancestry” criteria for a visa that allows an individual to live and work in the UK. Citizens from Commonwealth countries who are able to show that one of their grandparents were born in the UK, Channel Islands or the Isle of Man, can apply for a visa, allowing them to work in the UK unrestricted.

The Ancestry Visa basically provides the applicant with a five-year visa that allows them to take up employment or study in the UK, without any restrictions. The applicant can also change employers, without having to fill in a new immigration application.

The requirements for an application under the Ancestry route are both clear and at times open to interpretation. Note that step-parents and their lineage are excluded from the criteria. The main points of the criteria that need to be met, with some of our own comments and queries, are:

  • the applicant needs to be a Commonwealth citizen.
  • applying from outside the UK.
  • must be able to prove that one of their grandparents were born in the UK.
  • the individual is planning on living and working in the UK. (why would they apply otherwise?)
  • are aged 17 or over.
  • have sufficient funds to support themselves and any accompany dependants during their time in the UK.

Sufficient funds is one of those terms that is heavily open to interpretation and provides fertile grounds for the immigration focused legal profession, even though the Government does provide its own criteria over what is regarded as sufficient! Please also note that the applicant cannot access public funds on this type of visa.

The criteria for what are accepted as evidence of a grandparent being born in the UK is covered by three areas. The grandparent must have been born:

  • In the UK, including the Channel Islands and the Isle of Man.
  • Before 31 March 1922 in what is now Ireland.
  • On a British-registered ship or an aircraft.

We are curious as to how many grandparents would have been born on an aircraft given i) the lack of access to flights at the time and ii) just the chances of being born on an aircraft full stop and iii) what if the aircraft was stopping over at a foreign country at the time?

Interestingly there is no provision to switch to this visa if the individual is already in the UK under the rules governing another type of visa. Presumably the lack of provision to switch it partially down to the earlier criteria that the applicant must be outside the UK when making an initial application.

With regard to dependent family members, they are allowed to accompany the successful applicant and they can also apply for settlement after living and working in the UK for the five years stipulated by the Ancestry Visa. They will need to satisfy the requirements of settlement. Even if they are not able to meet the settlement requirements, there is an option to extend the Ancestry Visa for a further five-year period.


If you need further assistance with your Ancestry Visa, get in touch with Bison Solicitors in Aldershot. We also have offices in Cambridgeshire, Isle of Wight, London, Oldham and Taunton.

Call us on +44 (0) 1252 268 068 or complete our contact form.


Domestic abuse

Domestic Abuse – Getting Tough at a National Level

Earlier this year the Government announced that it will make it a legal duty of Councils across England to provide safe and secure locations for victims of domestic abuse. The situation has been a bit of a “post code lottery” with facilities varying widely depending on where you are living. The Government is looking to standardise access to safe-houses and accessible help for victims of domestic abuse, across the country.

Up to this date there has never been a statutory definition of domestic abuse. The Domestic Abuse Bill looks to not only provide a definition but also to include, for the first time, financial abuse and non-physical controlling and coercive abuse.

What impact will the Domestic Abuse Bill have on family court proceedings? Not surprisingly if more “behaviours” are identified as domestic abuse then there should be an increase in allegations of domestic abuse and, in particular, children proceedings. The courts consider that domestic abuse (in the widened definition) is harmful to children whether they are subjected to domestic abuse or witness one of their parents being abusive to the other parent or live in a home in which domestic abuse is perpetrated. It is perceived that children may suffer harm directly from the abuse of a parent, or indirectly where the abuse impedes the parenting capacity of either of the parents. This widening of the definition of abuse has been largely welcomed by the legal profession but the problem is that the implementation of the widened definition is being hampered by the lack of resources within the family courts.

The rules governing how the Court behaves during family law and in particular, children proceedings, are very clear When an allegation of domestic abuse is made within children proceedings, the Court is obliged to identify at the earliest opportunity the factual and welfare issues involved, the nature of any allegation of domestic abuse, and the extent to which it would be likely to be relevant in deciding whether to make a child arrangements order.

In particular, under paragraph 25 of Practice Direction 12J, in circumstances where the allegations are undetermined, the court must consider whether it is in the interests of the children to allow interim contact with the accused parent. The point being that the risk of harm is paramount in assessing whether contact is appropriate. Judges will often simply prohibit any interim contact until a hearing can be heard and a fact-finding process has reached its conclusions.

Ideally the judge should determine whether a finding of fact is necessary “as soon as possible”, but the current situation in the family courts, where courts are closing, and the remainder are underfunded and understaffed. The result being that hearings are listed many months in the future, sometimes as much as 6 months. For this period the accused parent is prevented from having contact with their children. Another result can be that even where a falsely accused parent is vindicated, it is all too often the case that restarting contact can become its own issue, causing further acrimony and leading to more delays and problems. Obviously the delays can also mean that the victims of abuse, themselves, can be left waiting far too long for the Courts to make an order protecting those who are at risk of harm.

As with many areas of life, good intentions are great as long as they can actually be implemented. The government needs to ensure that these welcome reforms reach the people they are intended to help. The family courts need to be able to adequately provide services for those in family disputes. Without sufficient Court staff, time and resources, parents are let down and delays will continue. Sadly the eye of the present administration is elsewhere and the commitment to be able to successfully introduce change, perhaps, isn’t quite what it should be!


Bison Solicitors, Aldershot

How do I Avoid the Brexit Effect?

By Rabia Aleem

How to Avoid the Brexit Effect

Following the mounting ambiguity in terms of the UK position following the referendum, the United Kingdom finally reached an arrangement with the European Union in December 2017, an agreement echoed within a draft treaty published in March 2018 intended to circumvent any negative Brexit repercussions for these individuals, for whom many have already re-established their lives here in the UK.

Significant points of that agreement being:

As per Home Office new announced policy European Union (EU) Nationals  living lawfully and continuously in the UK for a least 5 years before 31 December 2020 can make a settled status application.

Settled status means that they will be able to stay in the UK indefinitely, with access to public funds and services. They can then go on to apply for British citizenship should they choose.

  • EU citizens in the UK on that date but who can’t fulfil the 5 years’ residence requirement can apply to stay in the UK until they have 5 years’ residence, when they can then apply for settled status.
  • EU citizens who arrive in the UK after the date we leave the EU but during the transition period will also be able to register for temporary residence status after 3 months, with a view to obtaining settled status after 5 years.

Treaty rights draft additionally contains provisions covering family members, extending past the 31st of December 2020, so far as the relationship had already existed at that date. Those hoping to make a European Economic Area (EEA) application will have to wait while negotiations continue between the UK government and those of Iceland, Norway, Switzerland and also Lichtenstein.

Types of Applications

Settled Status Application

Specialising in European applications from a long period of time. Our views about settled status applications? This new system is intended to be initiated during 2018, and we understand the Government has published information on its website with some basic information, however nobody is certain what form the settled status will take.

Points to be noted

An online application with options to submit a paper-based application will be available.

  • Applicants will be required to verify their identity together with a recent photograph, as well as a declaration of any criminal convictions.
  • Existing data in relation to supporting your application will be gathered via existing government records such as Her Majesty's Revenue & Customs (HMRC) and Department of Work and Pensions (DWP), given that the data will already be linked to the application, the information will be readily available.
  • Options to verify applications will also be available where government data or evidence is incorrect or inaccessible.

Whereas indications from the Theresa May’s Government have suggested that settled status applications would apply to individuals exercising their treaty rights and working within the UK, Immigration minister, The Rt Hon Caroline Nokes MP has suggested that basic conditions to be met may be that of the EU citizen establishing residency in the UK for the given 5-year period.With many more matters related to settled status yet to be fully agreed upon, it does appear that system is geared towards a partiality of consenting settled status in the majority of cases, with the exception of a refusal potentially being refused based on the grounds of serious criminal convictions.

Temporary applications

EEA Nationals who by the end of transition, have resided within the UK for less than the 5-year period will still be permitted to remain within the UK, however will be required to apply for temporary residency status by the 30th of June 2021. This enables them to stay long enough to acquire their 5 years residence following this with an application for settled status.

The other eventually being should the European Union nationals arrive after the UK has left the European Union, but prior to the end of the transition period, they will be required to make an application for temporary residency after a period of 3 months, despite the fact they will be permitted to live and work. The individual will then be permitted to reside for a period of 5 years to make an application for settled status.

Deadlines still apply for a settled status application

Considering how the Windrush overwhelmed the lives of many venerable Commonwealth citizens who lived for many years in the UK without any legal status. In a comparable parallel, EU citizens within the UK have been living in ambiguity in terms of their future in the UK.

Situation that demonstrates resemblances of the Windrush scandal, an opportunity to make an application for settled status, or to obtain temporary residence status, allowing individuals to accrue 5 years residence, will only remain open until the 30th of June 2021. Individuals missing this deadline may find themselves in a similar situation to the Windrush generation.

Resolving the status of EU and EEA citizens is part of our expertise as Immigration experts’ .We specialises in Immigration, Human rights and law related to EEA Nationals.

We guarantee that you will be given the time and respect that your immigration case deserves and that our immigration experts will always provide you with advice that is:

  • Honest
  • Effective
  • Clear
  • Updated
  • Friendly

Should you have any questions relating Brexit, obtaining residence permit and permanent residence permit as a qualified EEA National or as a family /extended family member please contact us.

Email: rabia.aleem@bisonsolicitors.co.uk

Telephone: +44 (0) 1252 268 068


Bison Solicitors, Aldershot

Spouse Visa Applications - Which Application Will Work For Me?

By Rabia Aleem

Spouse Visa Applications Under FLR(M) and FLR(FP)

Applying for a visa could be quite stressful as the applicant is required to put together a range of important documents while ensuring that they meet the eligibility criteria. However, being properly informed can significantly ease the process.

Today we will talk about the two different in country applications for leave to remain in the United Kingdom (UK) on ongoing family life in the UK under FLR (M) and FLR (FP).

What Is the Difference between FLR(M) and FLR(FP)

The FLR(FP) application is based on Family Life under the Appendix FM or the Private Life under Part 7 and stands for the further leave to remain in these two categories.

  • Family life

This category includes the right to apply as a parent of a child that is settled and not eligible to apply as a partner. The child can be British, for example. This is usually recommended when parents are divorced and the child lives with one of the foreign spouses.

There are also some exceptions if you apply for this kind of visa if you don’t have legal status in the UK, but you have a British child with your partner. If that’s the case, then the child is allowed to stay in the UK. However, this a special case. That’s why each situation is evaluated individually.

So, to cut the long story short, in order to qualify for this category, you be a parent, partner or a dependent child. Also, you can apply based on your private life in the United. If the application is approved, it will last for 2.5 years.

  • Private life

Although it has the same form, this kind of application is representative for the people who spent years in the UK and now want to legalise their stay. If approved, you will get a 2.5-year visa in a 10-year route. After ten years, you will have the possibility to secure your permanent residency.

The FLR (M) is an application that is based on the marriage of an individual to a person that is already settled in the UK, under the Appendix FM. However, it is not enough to be married to an English citizen to get this permission. In order to do so, you will have to meet all the requirements, including your status in the UK and the Financial Requirement. If the requests are met, then you will get a 2.5-year in the 5-year partner route.

Now that we know what these visas are, let’s talk about the new online form for them.

First of all, you can use the online form as an alternative to the paper forms because it is obviously quicker to use. You will no longer have to manually type down all the data like you would with a paper form, so the process will be faster.

With this online application, you can apply to remain in the UK as a partner or a family member of:

  • a person who has a humanitarian protection in the UK or a refugee leave
  • a British citizen
  • a person who is settled in the UK

Moreover, you can add other family members that are dependent on you in your application such as children, for example. All of you can now apply on the same online application.

In addition, you can use this form to apply for private life in the UK, too. However, before you do so, you must know if you are eligible, what documents are required and what fees you must pay.

Spouse Visa Application Requirements

Well, for a start, it’s normal to say that you must prove if you are married or in a civil partnership. Maybe you are a fiancé, or you proposed, and your marriage will begin soon (6 months after you arrived in the UK). In any case, it is important for your relationship to be recognised by the UK.

Another requirement is the knowledge of English. You want to live in the UK, so you must prove that you are capable of speaking their language.

Finally, you will have to show if you are financially independent or you depend on someone.

However, one can still apply for a visa even if you don’t meet these requirements. These are the special situations as mentioned earlier.

How we are different from other Immigration Lawyers

We guarantee that you will be given the time and respect that your immigration case deserves and that our immigration experts will always provide you with advice that is:

  • Honest
  • Effective
  • Clear
  • Updated
  • Friendly

Why choose Bison Immigration Solicitors, Aldershot

By taking a dynamic approach to each and every case and using our extensive knowledge of the law, we consistently exceed our clients' expectation and deliver results that serve their long term immigration goals. We take the time to understand our clients need to provide them with the best bespoke and individually tailored service. Our dedicated teams top immigration experts’ work closely with you to understand your requirements

We provide a fast, friendly, reliable, honest, affordable and professional immigration service. As specialist immigration and human rights lawyers.

If you have any questions relating FLR (M) or FLR (FP) or any other application under Immigration rules or Human rights Act please contact us.

Email: rabia.aleem@bisonsolicitors.co.uk

Telephone: 01252 268068


Bison Solicitors, Aldershot

MM - Supreme Court Appeal 2018

Lawfulness of discharge conditions for mental health patients to go to the Supreme Court

The Supreme Court has granted permission to appeal in the case of The Secretary of State for Justice v MM [2017] EWCA Civ 194 This is the latest case in a series of decisions about whether detained mental health patients can be subject to conditions on discharge where the cumulative effect of the conditions amounts to a deprivation of liberty.

In March 2017 the Court of  Appeal ruled that imposing conditions which deprived a patient of his or her liberty as part of a community discharge was a breach of the patient’s human rights even though the patient had consented to the conditions and the discharge would have reduced the degree of restrictions on the patient.  That decision followed the earlier case of RB v Secretary of State for Justice [2012] 1 WLR 2043 where such conditions were held to be a breach of the patient’s human rights.

The RB and MM decisions have been hugely contentious amongst those advocating for the rights of mental health patients.  RB was not followed by Mr Justice Charles in Secretary of State for Justice v KC & Anor [2015] UKUT 0376 (AAC), who held that the First Tier Tribunal had jurisdiction to impose conditions on a conditional discharge that involve a deprivation of liberty and that a capacitated patient could give valid consent to such conditions.   The KC decision was not disapproved by the Court of Appeal in MM.

The Supreme Court will, in effect, be asked to resolve this difference of judicial views.

David Lock QC and David Blundell are instructed by Bison Solicitors on behalf of MM (but they did not act for MM in the Court of Appeal).  David Lock QC acted for KC in MM.


Bison Solicitors on Unity 101 Radio – Mediation Services

Listen to Nicola Beasley and Komal Joshi talk about the Mediation Service provided by Bison Solicitors – 

They give an overview of what mediation is, why is is a worthy course of action when resolving a dispute, and what the pros and cons of mediation are!

 

Listen here at Unity 101 Radio: – http://www.podcast.canstream.co.uk/unity101/index.php?id=17840