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Children lacking capacity: which court?

RCJ portrait 146x219When it comes to restrictions on the liberty of children who lack capacity, which court is best? Nageena Khalique QC explains.

On 8 August 2018, in perhaps one of his last judgments prior to retiring, the President of the Family Division and the Court of the Protection, Sir James Munby, sitting as a Judge of the High Court, handed down a judgment on restriction on the liberty of children: A-F (Children) (No.2) [2018] EWHC 2129 (Fam). This case followed an earlier judgment from January 2018: Re A-F (Children) (Restrictions on Liberty) [2018] EWHC 138 (Fam), [2018] 2 FLR 319.

The purpose of his short final judgment was, in part, to consider the appropriate jurisdiction for dealing with issues concerning 16-17 year old children who lack capacity and may be subject to a deprivation of their liberty.

What can we learn from this judgment?

This article will look at the issue of jurisdiction, procedural requirements and relevant factors to be taken into consideration when dealing with the transfer of cases involving such children.

Munby P confirmed that the starting point is that the Court of Protection has jurisdiction in relation to children who have attained the age of 16, the gateway to that jurisdiction being that the child lacks capacity within the meaning of the Mental Capacity Act 2005.

Similarly, the Family Court has jurisdiction where care proceedings are brought pursuant to 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.

So should such cases 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?

Transfer from the Court of Protection to the Family Court/Family Division - is it just and convenient?

The Mental Capacity Act 2005 (Transfer Of Proceedings) Order 2007, SI 2007/1899, ("the Order") provides for the transfer of proceedings in relation to children aged 16 and 17 to or from the Court of Protection (COP).

Article 2 of that Order: “Transfers from the Court of Protection to a court having jurisdiction under the Children Act”, applies to a person under 18 and permits the COP to 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.

Factors to take into account when transferring from the COP

Article 2(3) of the Order requires the COP to take into account a number of factors when making a determination including:

  • whether the proceedings should be heard together with other proceedings that are pending in a court having jurisdiction under the Children Act;
  • 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;
  • the need to meet any requirements that would apply if the proceedings had been started in a court having jurisdiction under the Children Act;
  • any other matter that the court considers relevant.

The Court of Protection has power to make such transfer orders either upon an application or on its own initiative but if it does direct a transfer, it must give reasons for its decision (Article2(4)).

Transfer from the Family Court/Family Division to the Court of Protection - just and convenient

Article 3 of the Order: “Transfers from a court having jurisdiction under the Children Act to the Court of Protection”, provides almost identical wording for a transfer in the reverse direction for a person under the age of 18, the test being whether in all the circumstances, it is just and convenient to transfer the proceedings to the COP (Article 3(2)).

Relevant factors in transferring to the COP

Article 3(3) of the Order requires the Court to take into account the following:

  • whether the proceedings should be heard together with other proceedings that are pending in the Court of Protection;
  • 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;
  • 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;
  • any other matter that the court considers relevant.

A court having jurisdiction under the Children Act may make an order upon an application or on its own initiative, and must also give reasons for its decision. Once proceedings are transferred they 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.

What other matters will the court consider to be relevant?

In both Article 2(3)(d) and its mirror Article 3(3)(d), other matters that the court considers relevant are not defined, allowing the exercise of discretion, but relevant factors will inevitably be case specific and might include such matters as whether the person is likely to regain or lose capacity.

This issue was in fact considered in more detail in the brief but helpful judgment of Hedley J in B (A Local Authority) v RM, MM and AM [2010] EWHC 3802 (Fam), [2011] 1 FLR 1635.

Hedley J emphasised that it was not possible to provide an exhaustive analysis of these issues (and acknowledged that other issues might arise in other cases) but identified matters which may often be relevant. These are set out at paragraph 28 of his judgment, and summarised here as follows:

  1. Is the child over 16?
  2. Does the child lack capacity in respect of the decisions which are to be made in the Children Act proceedings?
  3. Are the disabilities giving rise to lack of capacity lifelong or long-term?
  4. Can the decisions which arise in respect of the child’s welfare all be taken and all issues resolved during the child’s minority?
  5. Does the Court of Protection have powers or procedures more appropriate to the resolution of the issues than are available under the Children Act?
  6. Can the child’s welfare needs be fully met by the exercise of Court of Protection powers?

Ultimately, the question 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.

One of the reasons that Hedley J transferred proceedings in B (A Local Authority) v RM, MM and AM was 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.”

Decision in A-F (Children) (No.2) - transfer or status quo?

Munby P adopted Hedley J's approach to the issue of transfer between the different jurisdicitons and declined to attempt any more detailed exegesis of the statutory regime.

The facts in A-F (Children) (No.2) differed from those in the case which Hedley J dealt with. Conversely, Munby P did not transfer the case to the Court of Protection, providing the following reasons (at paragraph 12):

  • There was no sensible basis for discharging the care orders in place particularly as in his view, the children required the continuing protection of the care regime, including LAC reviews and the support of an IRO;
  • The Family Court had an ongoing, albeit less significant role e.g. in relation to contact which would be determined under section 34 of the 1989 Act;
  • The local authority's children’s social care (LAC) teams would be more familiar with practice and procedure in the Family Court/Family Division than that in the Court of Protection
  • The children’s guardians would be able to act in that role so long as the cases remained within the Family Court/Family Division;
  • Judicial continuity was more likely if there was no transfer.

In conclusion, Munby P did not accept that the children’s welfare would be better safeguarded within the Court of Protection.

Not only did this case provide helpful guidance in relation to transfers between the overlapping jurisdictions, but it provided some useful templates and draft orders, which Munby P annexed to his judgment, for practitioners to follow.

Annex: Draft Orders and templates

The President prepared three forms of order attached to his judgment, found here: https://www.bailii.org/ew/cases/EWHC/Fam/2018/2129.html

(i) directions on issue; (ii) order following first hearing; and (iii) order following final hearing, in a form compatible with the Compendium of Standard Family Orders.

As a parting comment, Munby P stated that:

"It will, of course, be for Sir Andrew McFarlane, as President of the Family Division, to determine in due course whether they should be formally promulgated as additions to the Compendium".

In addition he raised and/or annexed the following to his judgment:

  1. A social work statement template for use by local authorities.
  2. A short foccused form of the position statement which should be filed by the children’s guardians (CAFCASS).
  3. A revision that should be made to the C110A form to identify whether any proposed care plan involved a possible deprivation of the child(ren)’s liberty within the meaning of Article 5. Munby P invited the Family Procedure Rule Committee to give careful consideration to this revision.

Nageena Khalique QC is a barrister at Serjeants' Inn. She can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..
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