Case numbers omitted
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
SIR JAMES MUNBY
(Sitting as a Judge of the High Court)
Re A-F (Children) (No 2)
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:
A review of any relevant developments since the previous hearing in August 2017.
The making of final orders.
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.
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, submits that I should not transfer either of these cases to the Court of Protection. Ms Heaton and Ms Burnell do not suggest otherwise. I agree that these cases, like the others, should remain where they are. I can summarise my reasons very briefly:
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.
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.
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.
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.
It may be easier to ensure judicial continuity if there is no transfer.
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 agree with counsel that there may be advantage in my approving draft forms of order for use in these cases. With their assistance I have prepared the three forms of order which are attached to this judgment: (i) directions on issue; (ii) order following first hearing; and (iii) order following final hearing. These drafts are each in a form compatible with the Compendium of Standard Family Orders. 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.
I add three final points:
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.
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.
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.
Annex (social work statement template)
“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.)”
Forms of order: (i) directions on issue
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
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
The judge read the following documents:
[ Insert details, for example :
A social work statement in the approved template format;
[A report from the child’s school / educational provider] ;
The most recent care plan;
The minutes of the most recent LAC review; and
[Any recent reports held by the local authority in relation to the child’s physical and/or mental health] .
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
The proceedings are allocated for case management to [ name of judge ] [sitting as a Judge of the High Court] .
Appointment of guardian
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
The local authority must by 4pm on [ date ] serve on all parties the application form and accompanying evidence.
Listing of hearing
This matter is listed before [ name of judge ] [sitting as a Judge of the High Court] on [ date ] at [time] at [ court name ] for case management hearing. The parties and their representatives shall attend no later than one hour before the time the hearing is listed.
Dated [ date ]
Forms of order: (ii) order following first hearing
ORDER MADE BY [ NAME OF JUDGE ] [SITTING AS] A JUDGE OF THE HIGH COURT, FAMILY DIVISION ON [ DATE ]
The parties and representation at this hearing
The applicant is [ name of local authority ] , represented by [ barrister/solicitor name ] [instructed by [ solicitor name ]] whose contact details are [ chambers/firm name ], [ phone number ] , [ email ]
The first respondent is [ name ] , the [ relationship to child ] , [in person] , represented by [ barrister/solicitor name ] [instructed by [ solicitor firm name ]] whose contact details are [ chambers/firm name ], [ phone number ], [ email ]
The second respondent is [ name ] , the [ relationship to child ] , [in person] , represented by [ barrister/solicitor name ] [instructed by [ solicitor firm name ]] whose contact details are [ chambers/firm name ], [ phone number ], [ email ]
The third respondent is the child (born on [ date of birth ] ) acting by [his] / [her] guardian [ guardian name ] , represented by [ barrister/solicitor name ] [instructed by [ solicitor firm name ]] whose contact details are [ chambers/firm name ], [ phone number ], [ email ]
Unless otherwise stated, a reference in this order to ‘the respondent’ means all of the respondents.
Recitals
[Note these details should be included as an exception to the house rules] The judge read the following documents:
[ Insert details ]
The judge heard the following oral evidence:
[ Insert details ]
It appears to the court that the [proposed] living and care arrangements of the child arguably amount to a deprivation of their liberty.
[The solicitor for the child has confirmed that the guardian and he/she intend to visit the child [ name of child ] in the near future to undertake their preliminary enquiries.]
OR [The solicitor for the child and the guardian do not intend to visit the child [ name of child ] in the near future for the following welfare reasons :
[ set out reasons ]] .
The local authority has confirmed that it will facilitate the guardian being able to inspect any records held by it in relation to the child upon request.
IT IS DECLARED, PENDING FINAL HEARING THAT :
It is lawful and in the child’s, [name of child] , best interests to be deprived of [his] / [her] liberty by [ name of local authority ] at [name of placement] and accordingly such [continued] deprivation of liberty is authorised.
The confinement, as described within the social worker’s statement dated [ date ] at [ insert bundle reference ] , which is in place for [ name of child ] is necessary, the least restrictive and is a proportionate response to the risk of harm which arise.
[INSERT IF APPROPRIATE] In depriving [ name of child ] of [his] / [her] liberty, the local authority is directed to use the minimum degree of force or restraint required. The use of such force/restraint is lawful and in his best interests provided always that the measures are:
The least restrictive of the child’s rights and freedoms;
Proportionate to the anticipated harm;
The least required to ensure the child’s safety and that of others; and
Respectful of the child’s dignity.
IT IS ORDERED THAT:
Pursuant to s.100 of the Children Act 1989, leave is granted to the local authority to invoke the inherent jurisdiction.
[INSERT IF APPROPRIATE – for example if there is an issue in relation to the child’s capacity]
Experts
[The court being satisfied that it is necessary for the following expert to be instructed,] [permission] to [ name ] to instruct an expert [ type of expert ] , namely [ name ] , as a single joint expert is [given] / [refused] .
[The court being satisfied that it is necessary for the following expert to be instructed,] [permission] to [ name ] to instruct the following experts is [given] / [refused] : [ name and discipline of expert ] .
The application by [ name ] for permission to instruct an expert [ type of expert ] is adjourned pending compliance with Part 25C. Upon compliance the court will consider the application [at a hearing] / [on paper] .
The following directions shall apply to the instruction of [ name or discipline of expert ] :
The lead for the instruction of the expert shall be [ name ].
The letter of instruction to the expert [as approved by the court today] / [to be agreed by the parties by 4.00pm on [ date ] and sent to the court] must be sent the expert by 4.00pm on [ date ].
The questions to be dealt with by the expert are as follows: [ insert ]
Permission is [not] given for the expert to see and assess the child[ren].
The expert’s report must be sent to the court and to the parties by no later than 4.00pm on [ date ].
Permission is [not] given to call [ name ] to give oral evidence at the hearing.
Questions of the expert must be dealt with in accordance with FPR rule 25.10.
Experts can request the court (by letter or email) to give directions pursuant to FPR rule 25.17 for the purpose of assisting in the carrying out of the expert’s functions.
Any application for permission to call an expert to give oral evidence shall be made no later than 1 working day before the pre-IRH advocates meeting. Any party making such an application will be expected to have raised written questions in accordance with FPR rule 25.17.
[ Name of expert(s) ] shall give evidence by live link. [ Name ] shall send a witness bundle to the expert no later than 2 working days before the hearing.
The costs of the expert [s] [attending] shall be paid by the parties [equally] / [in the same proportions as the costs of the original instruction of the expert, subject to any further order made by the court] .
The reports by [ name ] may be disclosed to any person or agency providing professional therapy, counselling or treatment to the child.
Statements
The respondents may by 4pm on [ date ] send to the court and to the other parties a statement setting out their response to the local authority’s application.
In the event that the child is separately represented, by 4pm on [ date ] a statement shall be sent to the court and to the other parties in response to the application.
The guardian shall by 4pm on [ date ] send to the court and to the other parties a final analysis and recommendations report.
In the event that the child, if of an age to express wishes and feelings, indicates a wish to meet with the judge, the solicitor for the child shall notify the court so as that appropriate arrangements can be made in this regard.
Listing
The matter be listed before [ name of judge ] , sitting at [ court name ] , for [case management hearing] [issues resolution hearing] [final hearing] on [ date ] at [ time ] allowing [ time estimate ] . The parties and their representatives shall attend no later than one hour before the time the hearing is listed. [All parties should note that this is a hearing at which final orders may be made.]
Dated [ date ]
Forms of order: (iii) order following final hearing
ORDER MADE BY [ NAME OF JUDGE ] [SITTING AS] A JUDGE OF THE HIGH COURT, FAMILY DIVISION ON [ DATE ]
The parties and representation at this hearing
The applicant is [ name of local authority ] , represented by [ barrister/solicitor name ] [instructed by [ solicitor name ]] whose contact details are [ chambers/firm name ], [ phone number ] , [ email ]
The first respondent is [ name ] , the [ relationship to child ] , [in person] , represented by [ barrister/solicitor name ] [instructed by [ solicitor firm name ]] whose contact details are [ chambers/firm name ], [ phone number ], [ email ]
The second respondent is [ name ] , the [ relationship to child ] , [in person] , represented by [ barrister/solicitor name ] [instructed by [ solicitor firm name ]] whose contact details are [ chambers/firm name ], [ phone number ], [ email ]
The third respondent is the child (born on [ date of birth ] ) acting by [his] / [her] guardian [ guardian name ] , represented by [ barrister/solicitor name ] [instructed by [ solicitor firm name ]] whose contact details are [ chambers/firm name ], [ phone number ], [ email ]
Unless otherwise stated, a reference in this order to ‘the respondent’ means all of the respondents.
Recitals
[Note these details should be included as an exception to the house rules] The judge read the following documents:
[ Insert details ]
The judge heard the following oral evidence:
[ Insert details ]
It appears to the court that the child is not Gillick competent and therefore is unable to consent to the restrictions on their liberty which are in place.
[It appears to the court] [The parties agree] that the living arrangements and care arrangements for child [ name of child ] are such that [he] / [she] is being deprived of [his] / [her] liberty.
[It appears to the court] [The parties agree] that the care and living arrangements are in the best interests of the child and the restrictions on [his] / [her] liberty within that placement are necessary and proportionate to ensure their safety and ongoing welfare.
The local authority agrees to convene a deprivation of liberty review after each Looked After Child review, the minutes will be circulated to the parties, and the solicitor for the child and guardian will be invited to the review.
The child’s parents [do not] support the arrangements for the care of the child and restrictions which will be put in place.
IT IS DECLARED THAT:
The child, [ name of child ] , is being deprived of [his] / [her] liberty and is unable to consent to the same.
It is lawful and in the child’s best interests to be deprived of [his] / [her] liberty by [ name of local authority ] at [ name of placement ] and accordingly such [continued] deprivation of liberty is authorised until [ Date no more than 12 months from date of order ] .
The confinement, as described within the social worker’s statement dated [ date ] at [ Bundle Reference ] , which is in place for [ name of child ] is necessary, the least restrictive and is a proportionate response to the risk of harm which arise.
[INSERT IF APPROPRIATE] In depriving the child of [his] / [her] liberty, the local authority is directed to use the minimum degree of force or restraint required. The use of such force/restraint is lawful and in their best interests provided always that the measures are:
The least restrictive of the child’s rights and freedoms;
Proportionate to the anticipated harm;
The least required to ensure the child’s safety and that of others; and
Respectful of the child’s dignity.
IT IS ORDERED THAT:
If any change to the care or living arrangements has been implemented which is required as a matter of urgent necessity and which would render it more restrictive, the local authority shall apply to the court for an urgent review of this order on the first available date after the implementation of any such change.
If any change to the care or living arrangements are proposed which would render it more restrictive (but are not required as a matter of urgent necessity) the local authority shall apply to the court for review of this order before any such changes are made.
If there is any significant change, whether deterioration or improvement, in the child’s condition, or if is proposed to move the child to a different placement, the local authority shall apply to the court for review of this order.
In any event, the local authority shall make an application to the court no less than one month before the expiry of authorisation to deprive [ name of child ] of [his] / [her] liberty for a review of this order should a continuation of the care and living arrangements be proposed. Such application should be supported by the following evidence:
Statement from the social worker as to the child’s current circumstances, which includes the views of the IRO; and
A school report, if relevant.
In the event that there has been no significant change of circumstances since the conclusion of the previous proceedings, any review hearing may be conducted as a consideration of the papers unless any party requests an oral hearing or the court decides that an oral hearing is required.
Any future applications are reserved to [ name of judge ] , if available.
There be no order as to costs save for detailed assessment of the publicly funded parties’ costs for the purpose of LAA funding.
Dated [ date ]