In the following two cases, the High Court grappled with questions concerning the welfare of vulnerable older children who lack capacity and the cross-cutting jurisdictions of the Children Act, the Inherent Jurisdiction of the High Court, and the Court of Protection.
In a recent case before Mr Justice Holman (November 2019), welfare, placement and contact were in issue in respect of a 17-year-old for whom a care order was no longer an option, and who lacked capacity. The Judge determined that orders under the inherent jurisdiction and making the child a ward of the court were the best way to safeguard his welfare. The Judge took into account the advantage of retaining the Guardian from the Children Act proceedings, as against the potential delay caused by the need to involve the official solicitor, and the benefit of the court continuing to oversee ongoing decisions over contact and placement. Holman J adjourned the applications that had been made under the Mental Capacity Act 2005 to just prior to the child’s 18th birthday to avoid any delay.
In the case of B v RM [2011] 1 F.L.R. 1635, Mr Justice Hayden, considered that the particular issues justified an order for transfer under the Mental Capacity Act 2005. In determining jurisdiction he found that the key issue was whether, looking at the child's individual needs, it could be said that their welfare would be better safeguarded within the Court of Protection than it would be under the 1989 Act. The factors included:
- the need for further court determination of her placement;
- that her disabilities and acute care needs were lifelong;
- that declarations in the Court of Protection avoided the negative consequences of making of a care order;
- the CoP jurisdiction set the necessary framework within which M's needs could be addressed.
It is important to note that in cases involving 16-17 year olds who lack capacity, the courts will not automatically assume that the Court of Protection is the appropriate jurisdiction and will consider whether on the facts of a particular case, a child’s welfare will be better safeguarded under the inherent jurisdiction of the High Court.
