Court of Protection "unlikely to consider streamlined procedure appropriate" for authorisation of deprivation of liberty in living arrangements of 16/17 year olds, says judge

The Court of Protection is unlikely to consider that the streamlined procedure is appropriate for authorisation of deprivation of liberty in the living arrangements of 16/17 year olds, a judge has said.

In KL (A Minor : deprivation of liberty) [2022] EWCOP 24 Her Honour Judge Hilder concluded at paragraph 87: “Whilst I am cautious of statements of ‘general guidance’, each ‘best interests’ determination falling to be considered on its own merits, I have endeavoured to explain how the Court is approaching a new stream of cases, with the hope of assisting all participants in proceedings before the Court. In short:

a.    the Court is unlikely to consider that the streamlined procedure is appropriate for authorisation of deprivation of liberty in the living arrangements of 16/17 year olds;

b.    the Court is unlikely to be critical of an applicant for bringing an application for authorisation of deprivation of liberty in the living arrangements of a 16/17 year old either by COP1 application to the appropriate hub court, or by streamlined application to the central registry at First Avenue House. It follows from (a) that the procedure adopted post-issue is likely to be substantially the same. If/when an in-person attended hearing is required, consideration will be given to transfer to a local hearing centre.”

The background to the case was that Bolton Council had made an application for authorisation of deprivation of liberty in the living arrangements of KL. The application was made under the streamlined procedure set out in Part 2 of Practice Direction 11A but the authorisation was granted, by consent, at an attended hearing.

HHJ HIlder’s judgment addressed a COP9 application made by the council prior to the hearing, for reconsideration of the decision to take the application out of the streamlined procedure.

KL was born in November 2003. He has been known to social services since birth. A Care Order was made in respect of him in 2006. He has lived with the same foster carers since he was 4 years old. He has had no contact with either of his birth parents since 2016, and he no longer has any contact with his siblings either.

KL has diagnoses of autistic spectrum disorder with severe learning difficulties. He is non-verbal. It was agreed by both parties and accepted by the Court that he lacks capacity to make the decisions in issue in the proceedings.

On 5th April 2021 HHJ Hilder made an order which took the application out of the streamlined procedure and invited the Official Solicitor to act as Litigation Friend for KL. The reasons given for this were that:

a. KL was just 17 years old;

b. he had been subject of a Care Order since 22nd March 2006;

c. he had no family contact;

d. there would be transition to adult services within 12 months;

e. he should be independently represented.

The council made a COP9 application dated 24th June 2021 seeking reconsideration of the decision to take the matter out of the streamlined procedure. HHJ Hilder said the application was based on the assertion that, although the reasons (a) - (d) as set out above were factually accurate, they “do not necessarily lead to a conclusion that the matter was not suitable for the streamlined process…or that KL should be joined as a party and the Official Solicitor should be appointed to represent him.” 

By order made on 23rd July 2021, it was directed that the reconsideration application be heard at a hearing already listed on 27th July.

Meanwhile, the Official Solicitor had accepted the Court’s invitation to act as Litigation Friend for KL. At the hearing on 27th July, both parties agreed that the COP9 application was now “otiose.” HHJ Hilder made an order which included authorisation of deprivation of liberty in KL’s living arrangements for a period of 12 months.

The council, nonetheless, expressed concern that, in other quarters, it had met with criticism for not using the streamlined procedure and sought clarification of the approach it should take.

KL’s representatives adopted a neutral position about the suitability of the streamlined procedure for the matter but expressed concern about the potential costs to KL of that procedure not being followed (although in fact the applicant council had met KL’s costs so there was no loss to him.)

HHJ Hilder therefore agreed to set out in a written judgment as response to the COP9 application an explanation of the approach taken by the Court, to be published for wider consideration.

In addition to the conclusions at paragraph 87 mentioned above the judge also said: "I am conscious of the complexities of overlapping jurisdictions and emphasise that nothing in this judgment is intended to interfere with procedures adopted outside the Court of Protection. I am aware that the Family Justice Observatory is considering deprivation of liberty of minors. An opportunity for Court of Protection engagement in that process has been arranged, with the goal of ensuring that overlapping jurisdictions interact in the best possible way for the young people they both seek to protect."