A-F (Children) (No 2), Court of Appeal - Family Division, August 08, 2018, [2018] EWHC 2129 (Fam)

Resolution Date:August 08, 2018
Issuing Organization:Family Division
Actores:A-F (Children) (No 2)
 
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Neutral Citation Number: [2018] EWHC 2129 (Fam)

Case numbers omitted

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 8 August 2018

Before :

SIR JAMES MUNBY

(Sitting as a Judge of the High Court)

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Re A-F (Children) (No 2)

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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

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This judgment was handed down in open court

Sir James Munby (Sitting as a Judge of the High Court):

  1. 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.

  2. 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.

  3. I can take most of this quite shortly.

  4. 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.

  5. 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.

  6. 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.

  7. 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.''

  8. 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...

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