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(Court of Protection, HHJ Hazel Marshall QC, 4 November 2011)
The 7-year-old child suffered from cerebral palsy as a result of injuries sustained during birth. She was likely to not have capacity to litigate when she reached majority at 18. In proceedings against the NHS Trust leading counsel advised to settle for damages at a very significant discount of the total claim. The mother applied to the Court of Protection to set up a trust to receive the damages award.
The authorisation of settlement could only be justified if it was in the child's best interests. In the circumstances of this case it was in the child's interests due to the potential costs savings and the safety net of the mother acting as the child's deputy. However, this judgment could not be relied upon as precedent but gave guidance on the principles and factors to be considered.
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