Courting opinion

A recent case looked at the circumstances under which cases will be transferred to the Court of Protection. Alex Ruck Keene and Victoria Butler-Cole report.

The case of B Local Authority v RM, MM and AM [2010] EWHC 3802 (Fam), decided by Hedley J in October last year but only reported on Lawtel in March, provides useful guidance as to the circumstances under which the Court will transfer an application for a care order in respect of a 16 or 17 year old to the Court of Protection. Such applications are, as Hedley J noted, likely to be rare, but raise some difficult questions.

The expert evidence was that the child in question, AM (who was nearly 17 at the time that the matter came before Hedley J), suffered from severe learning disability, autism and Tourette Syndrome. Her disability was lifelong, she would never be able to live independently and would require a high level of support from the adults around her in order to ensure that her day-to-day needs were met. The local authority sought a care order on the basis that AM’s mother had never really appreciated or accepted the difficulties caused by these profound disabilities and, despite all the evidence, the mother adhered to the belief that this child could be cared for at home.

The s.31(2) Children Act 1989 threshold was conceded; the question for the Court was therefore what order (if any) should be made. The mother contended for no order on the basis that she was prepared to cooperate with the local authority; the local authority contended for a care order (supported in this by the Guardian).

Hedley J confessed his doubts as to both approaches, and then (at paragraph 24) identified as a source of further concern the fact that the issues in the case – which boiled down the quality of care AM was receiving at a specific unit, and the speed at which a move to another was planned or carried into effect – would not be resolved by the time AM turned 18.

As he noted: “[h]er disabilities are both grave and permanent, the demands made by her needs will be no less as she becomes an adult. Indeed, she may present even greater challenges to carers. The period of 12 months [to her 18th birthday] is wholly arbitrary in her life and in dealing with the needs that she has.” Hedley J therefore ventured the view that the case should be transferred to the Court of Protection, a question which he noted that the Counsel before him did not understand had been considered before by the Court.

Hedley J set out the statutory framework, and, in particular, Article 3 of the Mental Capacity Act 2005 Transfer of Proceedings Order, SI2007/1899, which provides in material part (Article 3(3)) that a Court deciding whether to transfer proceedings to the Court of Protection from those under the Children Act 1989 must have regard to:

(a) whether the proceedings should be heard together with other proceedings that are pending in the Court of Protection;

(b) whether any order that may be made by the Court of Protection is likely to be a more appropriate way of dealing with the proceedings;

(c) the extent to which any order made as respects a person who lacks capacity is likely to continue to have effect when that person reaches 18; and (d) any other matters that the Court considers relevant.

Hedley J noted at paragraph 28 that: “That raises the question particularly under Article 3(3)(d) as to what matters the Court should take into account in deciding whether to exercise these powers and to adopt this approach. An ex tempore judgment in a case on its own facts is no basis for attempting an exhaustive analysis of these issues; nevertheless, a number of matters suggest themselves, matters which may often be relevant in the relatively small number of cases in which this issue is likely to arise.

“One, is the child over 16? Otherwise of course, there is no power. Two, does the child manifestly lack capacity in respect of the principal decisions which are to be made in the Children Act proceedings? Three, are the disabilities which give rise to lack of capacity lifelong or at least long-term? Four, can the decisions which arise in respect of the child's welfare all be taken and all issues resolved during the child's minority?

“Five, does the Court of Protection have powers or procedures more appropriate to the resolution of outstanding issues than are available under the Children Act? Six, can the child's welfare needs be fully met by the exercise of Court of Protection powers? These provisional thoughts are intended to put some flesh on to the provisions of Article 3(3); no doubt, other issues will arise in other cases. The essential thrust, however, is whether looking at the individual needs of the specific young person, it can be said that their welfare will be better safeguarded within the Court of Protection than it would be under the Children Act.”

On the particular facts of the case before him, Hedley J concluded that he was “wholly satisfied” (paragraph 29) that AM’s welfare would be better protected within the Court of Protection; he therefore transferred the case under Article 3(4)(a) to the Court Protection, reconstituted himself as a judge of the Court of Protection, and dedicated the remainder of his judgment to giving effect to his conclusions within the framework of the Mental Capacity Act 2005.

Comment

The parallel jurisdiction of the Court under the Children Act 1989 and the MCA 2005 in respect of children aged between 16 and 17 has proved in the authors’ experience to be the source of some difficulties in practice, and this guidance is welcome in terms of setting out the framework both for transfer and also for when proceedings should be issued within the Court of Protection, rather than for orders under the Children Act 1989.

The judgment does throw into relief one interesting question of principle, however, namely the difference in approach between the CA 1989 and the MCA 2005. The CA 1989 enshrines a protective jurisdiction; the MCA 2005 enshrines both this jurisdiction, but also the enabling jurisdiction of the Court to promote the autonomy of P.

Where a 16 or 17 year old suffers from life-long disabilities rendering them effectively permanently incapable of making welfare decisions, which approach should prevail? Should it make a difference that proceedings have been brought under the CA 1989 or the MCA 2005? Should it, in turn, make a difference as to whether the Court should transfer proceedings from one to the other? Hedley’s judgment might suggest that it should – but, as he noted, it is likely that these issues will have to be fleshed out further in future judgments.

Alex Ruck Keene and Victoria Butler-Cole are barristers at 39 Essex Street (www.39essex.co.uk).