B (A Local Authority) v RM & Ors

Where a person aged 16 or over lacks capacity and has lifelong or long-term disabilities, proceedings under the Children Act 1989 may be transferred to the Court of Protection under article 3 of the Mental Capacity Act transfer order. The central question is whether, having regard to the individual’s needs, welfare will be better safeguarded in the Court of Protection than under the Children Act. Relevant considerations include the person’s age, manifest lack of capacity, the duration of the disabilities, whether welfare issues can be resolved during minority, the comparative powers and procedures of the two jurisdictions, and whether the person’s needs can be fully met by Court of Protection powers. Transfer may be appropriate where continuing court oversight and best-interests declarations provide a better framework than a time-limited care order.

The local authority sought a care order concerning AM, a nearly 17-year-old young woman with severe learning disability, autism, Tourette syndrome and lifelong, extensive care needs. The threshold under section 31(2) of the Children Act 1989 was conceded. The welfare issues concerned her placement, future move nearer her family, continuing family contact and the planning of adult services.

The court had to determine whether to make no order, make a care order, or transfer the proceedings to the Court of Protection. The issue arose because AM was over 16, manifestly lacked capacity, and her needs were expected to continue beyond her eighteenth birthday.

1. Transfer ordered. The court transferred the proceedings to the Court of Protection on its own initiative under article 3(4)(a) of the Mental Capacity Act 2005 Transfer of Proceedings Order, and reconstituted itself as the Court of Protection. No care order was made.
2. The court applied the least-intervention approach under section 1 of the Children Act 1989: a care order is a measure of final resort. AM’s welfare required her to remain at U until a single, properly planned and funded final move could be implemented. Lifelong family involvement was a significant welfare factor.
3. Article 3 permitted transfer where it was just and convenient in all the circumstances. The relevant considerations included whether the person was over 16; whether she manifestly lacked capacity for the principal decisions; whether the disabilities were lifelong or long-term; whether the issues could be resolved during minority; whether Court of Protection powers and procedures were more appropriate; and whether those powers could fully meet her welfare needs.
4. The essential inquiry was whether AM’s welfare would be better safeguarded in the Court of Protection. That was satisfied because her lack of capacity was manifest, her disabilities and care needs were lifelong, resolution before her eighteenth birthday was unlikely, and best-interests declarations could provide a continuing framework without the adverse consequences of a care order.
5. The court declared that it was lawful and in AM’s best interests for her to remain at U, subject to agreement or further order; that the local authority should explore and, if practicable, implement a move near B; that she should have regular and frequent family contact; and that she should receive advised medical treatment. The existing evidence stood as evidence in the transferred proceedings, and the parties had liberty to restore the matter if deadlocked on a substantive issue.