How should the Court of Protection approach applications to authorise the deprivation of liberty of a 16 or 17 year old? And when is the streamlined procedure appropriate? Alex Ruck Keene looks at the current position.
These questions were not – in reality – on the radar of those considering deprivation of liberty in the community setting in the aftermath of the Cheshire West decision. However, in light of the Re D decision, they are now very firmly on the radar – and will remain so for the foreseeable future as we have no current indication as to when the LPS will come into force.
In Bolton Council v KL  EWCOP 24, SJ Hilder set down, in a helpfully full and detailed judgment, the substantive law relating to deprivation of liberty of 16/17 year olds, the procedural issues (including the complex interaction with procedures available in respect of children simply on the basis of age) and when cases are likely to be suitable for the streamlined procedure – i.e. when they are likely to be suitable to be considered by the courts solely on the papers.
The facts of the case are not directly relevant to the wider framing of the judgment, save and to the extent that they related to a young person who was the subject of a care order, had no family contact and would be transitioning to adult services within 12 months. Each of these were considered by her as ‘markers’ for suitability/unsuitability for the streamlined procedure.
As SJ Hilder noted:
56. The streamlined application was devised to meet the minimum requirements for compliance with Convention and domestic law, by abbreviating the procedural requirements of the standard COP1 application process. The difference between the standard and the streamlined court procedures is the intensity of scrutiny. The COPDOL11 process is very definitely not a ‘rubber-stamping’ procedure but it relies on judicial antennae alone to identify from paperwork if/where further enquiry is required.
57. The application in relation to KL could have been made on form COP1 to the Manchester hub court. The availability of the streamlined application does not make it inappropriate to start proceedings seeking authorisation of deprivation of liberty by the standard COP1 procedures, even where there is no apparent dispute. Just as judicial antennae may pick up matters which require deeper consideration such that the application is taken out of the streamlined procedure, applicants themselves may form the view that, even without active opposition, arrangements need to be probed more actively than the paperwork procedure envisages. I would be slow to criticise an applicant for making the application by COP1 rather than under the streamlined procedure. In my judgment there is little danger that the workload of the Court will be significantly increased by this approach because the ‘streamlined’ nature of the COPDOL11 procedure, with the prospect of quicker conclusion and lower costs, will be attractive to over-stretched applicants wherever possible.
58. Conversely, where an application has been made by COPDOL11 but the judge considers that the streamlined procedure is not appropriate, unless there was an obvious disregard for the intentions of the streamlined procedure (for example, a clear dispute, or a failure to undertake the consultations required to identify whether or not there is dispute), I would be slow to criticise an applicant for having used it. The fact that a judge has identified concerns attests to the robustness of the procedure; it does not necessarily mean that the application was wrongly made.
The real question, therefore, is less about whether the COP1 or COPDOL11 form was used, and more about whether the case is suitable then to be run through to its conclusion on the papers. As to this, Senior Judge Hilder noted that the streamlined procedure was not designed with 16/17 year olds in mind, and that such applications are:
60. […] factually distinguishable from the other cases which pass through the streamlined procedure. The 16 and 17 year olds are at a critical stage of their development and at the unavoidable cusp of transition from children’s services to adults’ services. That transition is known to be difficult, too often poorly implemented, for young people who lack capacity to make relevant decisions for themselves even when there is no issue of deprivation of their liberty. Where the issue does arise, it is much more common than for other age groups that ‘best interest’ arrangements are said to require the use of restraint and/or sedation. Not all but many of the 16 and 17 year olds already have a lengthy history of family breakdown, challenging needs and broken placements.
61. The 16/17 year old cohort is also distinguishable from the other cases which pass through the streamlined procedure for the very reason of there being alternative provision for that age group elsewhere. Outside the Court of Protection, if a 16 or 17 year old is to be lawfully deprived of their liberty, authorisation from a judge of High Court level is required. (In practice, the heavy workload of such cases is usually dealt with by s9 nominated judges.) This would be Tier 3 in the Court of Protection. The obiter comments of the Court of Appeal in Re X and more recently the requirements for procedural safeguards set out by the Supreme Court in Re T confirm my concern that adopting a paper-based approach for 16/17 year olds in the Court of Protection would be a disparity of approach very difficult to justify.
SJ Hilder then went through a series of factors as indicators of (un)suitability for the streamlined procedure. Starting with care orders, she noted that an extant care order is a marker of unsuitability. Conversely, however, an absence of a care order is not a marker of suitability:
65. A care order is not the only indicator of difficulties to date and legislative overlap. The Court is receiving streamlined applications in respect of 16/17 year olds who are ‘looked after children’ pursuant to section s20 of the Children Act 1989. The factual background in such applications is often very similar to those in which a care order has actually been made, and the legislative overlap is as complicated.
66. The Court is also receiving streamlined applications in respect of 16/17 year olds who continue to live with their families. The nature of the challenges which lead to care arrangements amounting to deprivation of liberty may be different but the state is still involved in the arrangements. Absence of exercise of formal powers does not eliminate the complex statutory overlap. Often in such cases there is an additional layer of complexity in that care arrangements post-18 will be funded by health bodies instead of or jointly with the Local Authority.
Turning to absence of contact with family members, SJ Hilder noted that:
68. Involvement of family members may be considered, as it was by Charles J in Re NRA, as a source of advocacy for P. Even in circumstances where family members are no longer primary carers of young people, continued contact provides an opportunity for hearing a different view, and its absence indicates total dependence on arrangements made by public bodies. Foster care is a form of local authority provision. An independent advocate would be an outside voice but different in kind to that which family members may raise. In my judgment, when an application concerns a minor, absence of contact with family members is an indication of circumstances which require careful scrutiny and accordingly a marker of unsuitability for the streamlined procedure.
As regards the imminence of transition:
69. As already noted, transition from children’s to adult’s services is an unavoidable feature of age. It is often a confusing process with too little ‘joined up’ working and the risk of decision- making falling between the cracks. Often the process of identifying a post-18 placement is difficult and protracted. It would be unhelpful, ineffective and unnecessarily expensive in time and fees for the Court to authorise arrangements made by one service which do not have the commitment of the other, or to authorise such arrangements only for a very short period in the knowledge that another application will be required very quickly afterwards. In my judgment, the imminence of transition between services responsible for care arrangements is a marker of unsuitability for the streamlined service.
SJ Hilder found that there were particular difficulties in adopting to 16-17 year olds any of the approaches that have been adopted in relation to independent representation of adults the subject of streamlined applications:
71. The closest family members for a 16/17 year old are likely to be a parent or someone who has exercised a quasi-parental role. It is now clear from Re D that a parent cannot consent to deprivation of liberty as an exercise of parental responsibility. Where a young person is still living in the family home, parents are likely to be involved in the implementation of the measures which amount to deprivation of the young person’s liberty. Where the young person is living elsewhere, it is likely (without necessarily implying any criticism of the parents) that care arrangements at the family home became unsustainable. Either way, it is difficult to see that the parent, however devoted, is sufficiently independent and free of other interests to be able to represent the young person in the proceedings, or that a parent should gain by representative means what they lack in the scope of parental responsibility. Rather, they should have the opportunity of being a party in their own right, or participating in proceedings less formally by permission to attend and be part of discussions, so that they can present their own views.
72. Foster parents, even long-term ones, are not in my view analogous to the “devoted family members” on which Charles J was willing to rely. From the nature of their involvement in a young person’s life, and without criticism being implied, they have their own interests in arrangements. They should certainly be consulted but they cannot be considered wholly independent of the public body applicant in a case concerning deprivation of liberty of a young person for whom they care. They are unlikely to be able to address the wider welfare issues, such as transition arrangements.
73. Similarly, an advocate has an important role in articulating a young person’s wishes and feelings but is not in a position to bring to bear any scrutiny of the arrangements beyond that which he sees (which may not be very far where, like KL, the person for whom he advocates does not wish to engage.)
74. The resources available for s49 reports are limited, and as a result there is presently a long delay before a streamlined application requiring a s49 report reaches a point where that report can even be commissioned. Delay is particularly inimical where the subject of an application is at a critical stage of their development and at a point of transition between public services.
75. Accredited Legal Representatives are now an available resource, and much valued by the Court. The Law Society Practice Note at paragraph 7 explicitly adopts Charles J’s positive view of ALR appointment in streamlined proceedings but at paragraph 10.1 it explicitly cautions against appointment in proceedings “when P is between the ages of 16-18.” The reason given for this is “the complexity of the overlapping legislation”. The eligibility criteria for accreditation understandably focus on experience of the Mental Capacity Act 2005, with no requirement for any expertise or familiarity with wider issues in respect of minors.
76. The appointment of an ALR is made by the Court from a database according to a ‘turntaking’ principle which aims to ensure that all ALRs are given an equal share of appointment opportunities. At the moment there is no way of knowing if the ALR at the top of the list for next invitation is “sufficiently experienced in all the relevant frameworks”. It would delay matters and be administratively burdensome to request this information and, if necessary, repeat the invitation process with the next in line.
77. Experience since December 2019 has shown that, with the benefit of robust scrutiny by fully informed representatives of P, some of the applications relating to deprivation of liberty of 16/17 year olds throw up very worrying issues in transitional arrangements and in respect of restraint; but others can be finalised by consent quickly. The difficulty is in knowing on first consideration of the COPDOL11 application which route a particular case is likely to follow. (Perhaps most worrying is the fact that the applicant has not identified when making the application issues which subsequently concern the Court.)
78. Those applications which are finalised quickly usually relate to care arrangements which can, and are expected to, continue unchanged beyond the age of 18; and include a clear explanation of / timeline for arrangements for transition to adult services. If both of these aspects are clearly set out in the application papers (bearing in mind the applicant’s duty of full and frank disclosure), then I would agree with the Official Solicitor that difficulties with overlapping legislation are unlikely to arise; and with Charles J that an ALR could easily do what solicitors appointed by the OS may do.
79. In the absence of such confirmed information in the application papers, the Law Society’s Practice Note is, in my judgment, correct: it will generally be unlikely for the court to appoint an ALR in cases concerning 16/17 year olds. (emphasis added)
SJ Hilder set out a helpful overview of how the court has been – administratively – handling applications to date, and how it will do so going forward, together with an indication of the provisions likely to appear both in an order taking the application out of the streamlined procedure, and the scope of matters to be addressed in further directions once P’s representation is secured. She also noted that:
85. When the position is reached that the Court is willing to grant an authorisation and conclude proceedings, the format of order should follow closely the terms of a Re X final order. In particular, the Court will be unlikely to discharge P as a party or the appointment of the Litigation Friend unless there is an agreed person willing and suitable to be appointed as Rule 1.2 representative for P during the review period, to monitor the implementation of the authorised care arrangements, to make an earlier application if it is considered that the authorised care arrangements no longer meet the needs of P, and to provide information for the review.
SJ Hilder concluded by noting that
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.
88. 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.
The Court of Protection – and those having recourse to it to discharge their obligations towards 16/17 year olds – are going to be stuck with the compromise of the streamlined procedure for quite some time, as was made clear in this exchange between the Chair of the Joint Committee on Human Rights and Michelle Dyson, Director-General for Adult Social Care, Department of Health and Social Care, at the evidence session for its inquiry into human rights in care settings on 18 May 2022:
Chair: Envisaging when the new system starts and the current system ends, are we talking about months or years? What sort of timeframe is it?
Michelle Dyson: We will announce that. We have this very big consultation running at the moment.
Chair: Sure, but I mean roughly.
Michelle Dyson: I cannot commit. We have to absorb the results of that consultation. It is hundreds of pages.
It is clear from this judgment that SJ Hilder has been distinctly troubled by some of the applications that she has seen (although not, it should be emphasised, this one). In particular, she has been concerned about applications advanced on the basis that there is, in effect, ‘nothing to see here’ – which may, in turn, shed a light on what’s considered to be normal practice. This, in turn, perhaps gives us an indication of the scale of the task that awaits as we move towards LPS implementation. In this regard, watch this space both for an updated version of our guide to judicial deprivation of liberty, and also a guide we are working up on 16/17 year olds and mental capacity (and, in the interim, a short video).
Arianna Kelly of 39 Essex Chambers having been involved in this case, she has not contributed to this note.