Court hears test case on ability of parents to make decisions for children over 18 with learning disabilities

The Court of Protection will this week hear a test case brought by the parents of three young people with learning disabilities over the position under current law which prevents them being able to make best interests decisions on behalf of their children as they are now over 18.

The claimants’ lawyers, Irwin Mitchell, said that under the current law, parents are responsible for their children up until they become adults, at which point the Mental Capacity Act states that decisions on their behalf should be taken collectively by everyone interested in their welfare. 

“But the parents argue that often in reality this means that the families are ignored and decisions are taken without them being consulted. They say that frequently these decisions are taken by social services departments who don’t know their children and that funding is a more important factor in such decisions than their children’s best interests,” the law firm said.

The claimants want to amend the Code of Practice which governs the courts’ interpretation of the Mental Capacity Act.

“They want it to become commonplace for parents to be handed ‘welfare deputy’ status,” Irwin Mitchell said. “This would see parents granted decision-making authority on behalf of their children where this would correspond with their children’s wishes and is deemed by the courts to be in the young person’s best interests.”

At present the courts only grant the status in a handful of rare and complex cases. 

Alex Rook, partner at Irwin Mitchell, said: “We have heard many first-hand accounts about how parents feel side-lined and powerless to help their children when they turn 18.

“The parents have the best interests of their children at heart and, having done what’s best for them during their childhood, want to be able to continue this. They are, in reality, the experts in relation to their own children’s views and wishes.”

Rook added: “Of course we accept that the court will need to make decisions on the facts of each particular case, but our clients believe this should be focussed on the young adult’s views and wishes and their best interests, without having to show that their application is ‘one of the most difficult’ as the Code currently requires.”

“We are hopeful that the courts look favourably on the parents’ case.”