Francesca Gardner

Francesca regularly advises and acts in claims under the Human Rights Act 1998. Francesca as recently advised and represented the claimants in two significant and successful claims for declaratory relief and damages arising from breaches of Article 5 and 8 of the European Convention on Human Rights. Francesca recently successfully secured a settlement figure in excess of £150,000 in a claim for unlawful detention.

Francesca acts in claims for vulnerable adults and children. Francesca routinely advises and acts in claims relating to children with particular focus on breaches of the ECHR while children are placed in the care of a local authority under various provisions of the Children Act 1989.

Francesca regularly advises and appears in medical treatment cases. Francesca also routinely takes instructions and has extensive experience in out-of-hours urgent applications.

Francesca appears and advises in a range of medical treatment cases, Francesca has particular experience in cases involving the treatment of adults with a diagnosis of anorexia nervosa, and cases where an adult is detained under the Mental Health Act and a determination is required as to whether the proposed treatment can be provided under the provisions of the Mental Health Act, or whether separate court authorisation is required and/or whether the court determination is required as to the lawfulness of a decision to no longer provide life sustaining treatment.

Francesca has appeared in a number of reported and significant cases in this area:

• E & F (Minors: Bood Transfusion) [2021] EWCA Civ 1888: Francesca appeared for the health trust in the significant Court of Appeal decision, considering the extent to which the court can override the wishes of a 17 year old young person, in relation to their medical treatment and religious beliefs.
• Northern Care Alliance NHS Foundation Trust v KT & Ors [2023] EWCOP 46: Francesca represented the sister of the protected party in a very difficult and complex case involving an application for withdrawal of life sustaining treatment. The case focussed, in particular, on the weight to be afforded to an adult’s religious beliefs.
• Kings College Hospital NHS Foundation Trust v South London and Maudsley NHS Foundation Trust & Anor [2024] EWCOP 20: Francesca represented the health trust in an application for declarations and orders authorising clinicians to perform an above knee leg amputation, against P’s wishes, to save his life.

Francesca is a qualified mediator. She mediates cases spanning the full range of her practice, including all areas of Court of Protection work and civil claims arising from disputes in relation to the use of and distribution of a vulnerable adult’s assets. Francesca accepts instructions in all areas of mediation, with a particular focus on her specialist areas of practice, mental capacity and mental health law and civil claims arising out of the same.

Francesca acts in a wide range of safeguarding matters, both in relation to children and adults. Francesca routinely advises public bodies on safeguarding mattes, including safeguarding adults reviews. Francesca has extensive experience of advising in relation to safeguarding in the context of charities, and the Charity Commission.

Francesca has extensive experience in acting in safeguarding matters that lead to proceedings under the Inherent Jurisdiction of the High Court, examples of cases are:

• Wakefield Metropolitan District Council v FH & Anor [2024] EWHC 830 (Fam)

Francesca has extensive experience in health and welfare matters and is recognised as one of the leading practitioners in this field nationally. Francesca receives regular instructions from public bodies (including local authorities, health trusts and CCGs), private individuals and the Official Solicitor.

Francesca regularly appears in the most complex cases before the Court of Protection. She has extensive experience in cases involving: capacity disputes, including the capacity to consent to sexual relations; residence and care disputes; allegations of sexual, emotional, physical and financial abuse and complex fact-finding hearings.

Francesca’s experience in this field, includes cases relating to:

• The interface between the Mental Health Act 1983, and the Mental Capacity Act 2005:
• Physical, sexual or financial abuse;
• Emotional abuse, including coercive control;
• Allegations of organised crime and trafficking;
• Complex issues relating to whether a person has capacity to engage in sexual relations;
• Religious observance.

Cases of Note

• Re P (Property & Affairs Deputyship: Jurisdiction)[2024] EWCOP 77 (T2)
• Re EM (Deprivation of Liberty, Care Planning and Costs)[2024] EWCOP 76 (T2)
• ZX (Capacity to engage in sexual relations)[2024] EWCA Civ 1462
• A Local Authority v ZX [2024] EWCOP 30
• AB v CD [2024] EWCOP 32
• P (Application to Withold Closed Material: Concurrent Civil Proceedings)[2024] EWCOP 26
• KL (A Minor: deprivation of liberty) [2022] EWCOP 24
• A Local Authority v P and CCG (Judgment on Capacity)[2021] EWCOP 48
• A Local Authority v SE & Ors [2021] EWCOP 44 (01 July 2021)
• A Local Authority v TA & Ors [2021] EWCOP 22
• Re Z (A child: Deprivation of Liberty: Transition Plan)[2020] EWHC 3038 (Fam)
• Re KC [2020] EWCOP 62
• North Yorkshire County Council v Elliot [2019] EWFC 37
• B v a Local Authority [2019] EWCA Civ 93
• Re B (Capacity: Social Media: Care and Contact)[2019] EWCOP 3
• SR v A Local Authority [2018] EWCOP 36
• The Hospital Trust v V & Ors [2017] EWCOP 20
• AG, Re [2016] EWCOP 37 (6 July 2016)
• SAD & Anor v SED [2017] EWCOP 3
• LCC v J K [2016] EWCOP 59
• NCC v TP (Capacity of TP) [2016] EWCOP B3
• NCC v TP [2016] EWCOP B4
• NCC v TP (Best Interests)[2016] EWCOP 61
• IH (Observance of Muslim Practice) [2017] EWCOP 9 (12 June 2017)

Francesca routinely advises on complex financial cases, including cases flowing from or overlapping with personal injury or clinical negligence claims.

Francesca regularly receives instructions from a broad range of clients in property and affairs work including: the Official Solicitor; professional and lay deputies; family members and public bodies.

Francesca has particular interest and expertise in cases involving the following: statutory wills; the appointment of deputies; the scope of the authority of a deputy; financial abuse; lasting powers of attorney and gifts.

In SAD & Anor v SED [2016] EWCOP 3: Francesca represented the daughters of P in the first post-MCA case to consider the issue of capacity to revoke a lasting power of attorney (LPA). P decided with capacity to appoint her daughters under an LPA. The evidence before the court indicated that the LPA was executed to guard against the financial consequences of hypomania resulting from her bipolar disorder. P revoked the LPA, and this was challenged by the daughters. The court gave helpful guidance as to the information relevant to the decision to revoke an LPA.

Francesca routinely advises in proceedings flowing from or related to personal injury proceedings. Francesca has recently advised on the management of a damages award for a prisoner that lacks the capacity to manage the award and the management of a damages award for a young man seriously injured in a road traffic accident. Francesca has extensive experience advising in relation to personal injury and clinical negligence claims that require consideration of applications to be made in the Court of Protection in circumstances where the protected party lacks capacity, including applications to authorise any deprivation of liberty arising from the care package.

Francesca advises and represents professional deputies in relation to a range of complex matters including applications for authority to execute a statutory will in complex circumstances, suspected financial abuse, service outside of the jurisdiction, fraudulent activities of a charity and applications to dispense with service.

Francesca provides regular training in this area and has experience of providing training events and seminars to practitioners, including public bodies and professional deputies.

Cases of Note

• SAD & Anor v SED [2016] EWCOP 3
• Re KC [2020] EWCOP 62

Francesca regularly advises and appears in medical treatment cases. Francesca also routinely takes instructions and has extensive experience in out-of-hours urgent applications.

Francesca appears and advises in a range of medical treatment cases, Francesca has particular experience in cases involving the treatment of adults with a diagnosis of anorexia nervosa, and cases where an adult is detained under the Mental Health Act and a determination is required as to whether the proposed treatment can be provided under the provisions of the Mental Health Act, or whether separate court authorisation is required and/or whether the court determination is required as to the lawfulness of a decision to no longer provide life sustaining treatment.

Francesca has appeared in a number of reported and significant cases in this area:

• E & F (Minors: Bood Transfusion) [2021] EWCA Civ 1888: Francesca appeared for the health trust in the significant Court of Appeal decision, considering the extent to which the court can override the wishes of a 17 year old young person, in relation to their medical treatment and religious beliefs.
• Northern Care Alliance NHS Foundation Trust v KT & Ors [2023] EWCOP 46: Francesca represented the sister of the protected party in a very difficult and complex case involving an application for withdrawal of life sustaining treatment. The case focussed, in particular, on the weight to be afforded to an adult’s religious beliefs.
• Kings College Hospital NHS Foundation Trust v South London and Maudsley NHS Foundation Trust & Anor [2024] EWCOP 20: Francesca represented the health trust in an application for declarations and orders authorising clinicians to perform an above knee leg amputation, against P’s wishes, to save his life.