England and Wales High Court (Family Division) Decisions

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.

“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.”

“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.”

“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)                    There can be no sensible basis for discharging any of the care orders which are already in place. The children require the continuing protection of such aspects of the care regime as LAC reviews and the support of an IRO.

ii)                  While the care orders remain in place, the Family Court has a continuing, if much reduced, potential role in the lives of the children – for instance, if issues in relation to contact require to be determined in accordance with section 34 of the 1989 Act.

iii)                For the time being, at least until they are approaching their eighteenth birthdays, the children are the responsibility of the local authority’s Children’s Social Care (LAC) Teams, who are, in the nature of things, much more familiar with practice and procedure in the Family Court and the Family Division than with practice and procedure in the Court of Protection.

iv)                The children’s guardians will be able to continue exercising that role so long as the cases remain within the Family Court and the Family Division; it is, at the least, doubtful whether they would be able to act as litigation friends in the Court of Protection.

v)                  It may be easier to ensure judicial continuity if there is no transfer.

vi)                Put shortly, the benefits weigh heavily in favour of maintaining the forensic status quo. There are, in contrast, so far as I can see, no reasons for thinking that, to adopt Hedley J’s words, the children’s welfare will be better safeguarded within the Court of Protection.   

i)                    A suggested form of social work statement template for use in these cases (set out as an Annex to this judgment) has been prepared by counsel. I commend its use by local authorities.

ii)                  The form of the position statements filed by each of the children’s guardians was appropriately short and focused. I commend its use by CAFCASS in similar cases in future.

iii)                By way of addition to what I said in my previous judgment, it has been helpfully suggested by counsel that an additional box should be included in the C110A form with this wording “Does the proposed care plan, or likely long-term care plan, for the child(ren) involve a possible deprivation of the child(ren)’s liberty within the meaning of Article 5 (on the basis that the child is or would be confined to a greater extent than a child of comparable age)?” I invite careful consideration of this proposal by the Family Procedure Rule Committee.

“Section 1       Case details

1.       Family composition

2.       Summary of reason/s for order sought

(This section should include family members and relationships, especially the primary carers and significant adults/other children and should specify the relationship in respect of each child subject to the application. Please set out the family members’ full names, their dates of birth, their nationality, ethnicity and their current addresses.)

Section 2         The social work chronology

(Key incidents already listed in the application form can be re-stated here so that the social work chronology contains all significant incidents.)

Section 3         Current presentation of the child / professional diagnosis and prognosis

(The child’s circumstances, identifying and describing, in particular, those aspects of the child’s situation which are said to require that the child to be placed as proposed and be subject to the proposed regime and, where possible, the future prognosis.  Include details of any current diagnosis and prognosis.)

Section 4         Analysis of confinement

(The nature of the regime in which it is proposed to place the child, identifying and describing, in particular, those features which it is said do or may involve ‘confinement’. Identification of the salient features will suffice.)

Section 5         The proposed care plan / analysis of restrictions

(Describe the proposed placement and regime explaining why they are necessary and proportionate in meeting the child’s welfare needs and that no less restrictive regime will do.)

Section 6         Child’s level of understanding / Gillick competence

(Whether the child is able to consent, by reference to Gillick competence, and the steps which have been taken to ascertain this aspect – details as to any expert assessments which have been undertaken in this respect.)

Section 7         Duration of order sought (maximum 12 months)

(What is the minimum duration for which an order is said to be necessary before any change of circumstances is likely.)

Section 8         Details of consultations with the child and other relevant persons

(Details as to the views of the child, the child’s parents, the Independent Reviewing Officer and any other relevant person.)

Section 9         Need for further evidence / assessments

(What, if any, further evidence or assessments are required in order to determine whether an order should be made.)

Section 10       Transition plan (if child due to turn 17)

(Where the child will be 17 by the time of the next review details of the steps being taken for the transition to the Adult Team and the name of the social worker who will be responsible for the transition.)

Section 11       Any other matters

(Any other matter which should be brought to the court’s attention, having regard to the duty to place all relevant facts both positive and negative before the court, whether in favour or against the case presented.)”

In the High Court of Justice                   No: [ Case number ]

Family Division

[ name of District Registry ]

sitting at [ court name ]

The Senior Courts Act 1981

The child

[ Name of child ]   [Girl] / [Boy]       [ dob dd/mm/yy ]

 

ORDER MADE BY [ NAME OF JUDGE ] [SITTING AS] A JUDGE OF THE HIGH COURT, FAMILY DIVISION ON [ DATE ]

DIRECTIONS ON ISSUE AND ALLOCATION ORDER MADE BY [ NAME OF JUDGE ] ON [ DATE ]

The parties

1.              The applicant is [ name of local authority ]

 

The [first] respondent is [ name ] , the [ relationship to child ]

[The second respondent is [ name ], the [ relationship to child ]]

 

Right to apply

As these directions have been made without a hearing you may ask the court to reconsider this order.  You must do that within seven days of receiving this order by writing to the court (and notifying any other party) and asking the court to reconsider.  Alternatively the court may reconsider the directions at the first hearing.

 

Recitals

2.              The judge read the following documents:

[ Insert details, for example :

a.               A social work statement in the approved template format;

b.              [A report from the child’s school / educational provider] ;

c.               The most recent care plan;

d.              The minutes of the most recent LAC review; and

3.              The local authority [ name of local authority ] has applied for authorisation to deprive the child of their liberty at [ name of placement ] .

THE COURT ORDERS

Allocation

4.              The proceedings are allocated for case management to [ name of judge ] [sitting as a Judge of the High Court] .

 

Appointment of guardian

5.              A guardian must be appointed for the child preferably the same guardian who represented the child’s interests within the care proceedings, if at all possible.

 

Service of the application and documents

6.              The local authority must by 4pm on [ date ] serve on all parties the application form and accompanying evidence.

 

Dated [ date ]