Re A-F (Children) (No 2)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 08 August 2018 |
| Neutral Citation | [2018] EWHC 2129 (Fam) |
| Court | Family Division |
| Docket Number | Case numbers omitted |
| Date | 08 August 2018 |
[2018] EWHC 2129 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby
(Sitting as a Judge of the High Court)
Case numbers omitted
Mr Shaun Spencer (instructed by the local authority) for the local authority
Ms Frances Heaton QC and Ms Kate Burnell (instructed by Hibberts LLP, Paul Crowley & Co and Lewis Rogers) for the children's guardians
Hearing date: 28 June 2018
Judgment Approved
This judgment was handed down in open court
Sir James Munby (Sitting as a Judge of the High Court):
Following hearings in May 2017 and August 2017, I handed down judgment in these matters on 31 January 2018: Re A-F (Children) (Restrictions on Liberty) [2018] EWHC 138 (Fam), [2018] 2 FLR 319. I shall not repeat what is in that judgment and will take it as read. This short final judgment follows a further hearing which took place in Liverpool on 28 June 2018.
The purpose of the hearing, as it developed, was to deal with four matters:
i) A review of any relevant developments since the previous hearing in August 2017.
ii) The making of final orders.
iii) In that context, consideration of the implications of the fact that two of the children with whom I am concerned either have had or will, during the currency of the final order, if granted, have their sixteenth birthday.
iv) The formulation, if possible, of standard forms of order for use in such cases.
I can take most of this quite shortly.
In relation to the first and second matters, I have, in relation to each child, an up-dating social work statement and an up-dating report, in the form of a position statement, from the children's guardian. As Ms Frances Heaton QC and Ms Kate Burnell succinctly put it in their position statement on behalf of all the guardians, there has, in short, been no significant change in the specific needs of any of the children (albeit in some cases there has been a move of placement and education), so consequently they each remain under complete supervision and control and are not free to leave their placements. The reports of the children's guardians are, as they say, short and focussed on the central issue of whether the declarations should continue. Each sets out the enquiries made, provides a brief over-view of the child's specific needs in respect of deprivation of their liberty and the conclusion – which is, in each case, that the declarations previously made should continue for a further twelve months and then be further reviewed in accordance with the principles I set out in my previous judgment.
In each case the local authority and the children's guardian invite me to make final orders authorising the continued deprivation of liberty for a period of twelve months. At the end of the hearing I said that I would make such orders in relation to all seven children.
In relation to the third matter, the starting point is that the Court of Protection has jurisdiction in relation to children who have attained the age of sixteen years and who lack capacity within the meaning of the Mental Capacity Act 2005. So too, in relation to such children, the Family Court has jurisdiction in the context of care proceedings under Part IV of the Children Act 1989 and the Family Division of the High Court, subject to the requirements of section 100 of the 1989 Act, can exercise its inherent parens patriae jurisdiction. The question, therefore, has been raised as to whether these two cases should remain in the Family Court (in relation to the care proceedings) and the Family Division (in relation to the parens patriae proceedings) or be transferred to the Court of Protection.
The Mental Capacity Act 2005 (Transfer Of Proceedings) Order 2007, SI 2007/1899, provides for the transfer of proceedings in relation to children aged 16 and 17 from or to the Court of Protection. Article 2, entitled “Transfers from the Court of Protection to a court having jurisdiction under the Children Act”, provides as follows:
“2 (1) This article applies to any proceedings in the Court of Protection which relate to a person under 18.
(2) The Court of Protection may direct the transfer of the whole or part of the proceedings to a court having jurisdiction under the Children Act where it considers that in all the circumstances, it is just and convenient to transfer the proceedings.
(3) In making a determination, the Court of Protection must have regard to –
(a) whether the proceedings should be heard together with other proceedings that are pending in a court having jurisdiction under the Children Act;
(b) whether any order that may be made by a court having jurisdiction under that Act is likely to be a more appropriate way of dealing with the proceedings;
(c) the need to meet any requirements that would apply if the proceedings had been started in a court having jurisdiction under the Children Act; and
(d) any other matter that the court considers relevant.
(4) The Court of Protection –
(a) may exercise the power to make an order under paragraph (2) on an application or on its own initiative; and
(b) where it orders a transfer, must give reasons for its decision.
(5) Any proceedings transferred under this article –
(a) are to be treated for all purposes as if they were proceedings under the Children Act which had been started in a court having jurisdiction under that Act; and
(b) are to be dealt with after the transfer in accordance with directions given by a court having jurisdiction under that Act.”
The mirror provision in Article 3, entitled “Transfers from a court having jurisdiction under the Children Act to the Court of Protection”, provides:
“3 (1) This article applies to any proceedings in a court having jurisdiction under the Children Act which relate to a person under 18.
(2) A court having jurisdiction under the Children Act may direct the transfer of the whole or part of the proceedings to the Court of Protection where it considers that in all circumstances, it is just and convenient to transfer the proceedings.
(3) In making a determination, the court having jurisdiction under the Children Act 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 matter that the court considers relevant.
(4) A court having jurisdiction under the Children Act –
(a) may exercise the power to make an order under paragraph (2) on an application or on its own initiative; and
(b) where it orders a transfer, must give reasons for its decision.
(5) Any proceedings transferred under this article –
(a) are to be treated for all purposes as if they were proceedings under the Mental Capacity Act 2005 which had been started in the Court of Protection; and
(b) are to be dealt with after the transfer in accordance with directions given by the Court of Protection.”
Article 3 was considered by Hedley J in B (A Local Authority) v RM, MM and AM [2010] EWHC 3802 (Fam), [2011] 1 FLR 1635, para 28:
“That raises the question particularly under Art 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 Art 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.”
In that case, it should be noted, the issue before Hedley J, where, although an application for a care order had been made, there was no care order in place, was whether the matter should be transferred to the Court of Protection rather than being dealt with under Part IV of the Children Act 1989. In the particular circumstances of the case, and for the reasons he set out (judgment, para 30) he transferred the proceedings to the Court of Protection, one of those reasons being that:
“Declarations in the Court of Protection avoid all the negative consequences as I see them of making of a care order whilst at the same time, setting the necessary framework within which AM's needs can be addressed.”
In the cases before me, in contrast, each of the children is already subject to a care order.
I agree with Hedley J's helpful summary of the principles to be applied and see no reason to attempt any more detailed exegesis of the statutory regime.
Mr Shaun Spencer, on behalf of the local authority,...
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