A-F (Children) (No 2)

Where a child aged 16 or 17 is subject to care proceedings and may also fall within the jurisdiction of the Court of Protection, transfer is governed by whether it is just and convenient, having regard to the statutory factors and the child’s individual welfare. Existing care orders, continuing Family Court functions, professional familiarity, guardian involvement and judicial continuity may justify retaining proceedings in the Family Court and Family Division. The central question is whether the child’s welfare would be better safeguarded in the Court of Protection. A transfer is not required merely because the child has reached 16 or lacks capacity.

Following an earlier judgment authorising deprivation of liberty arrangements for seven children, the court considered whether two children approaching or having reached 16 should remain within the Family Court and Family Division or be transferred to the Court of Protection. The children were already subject to care orders and remained under complete supervision and control. The local authority and guardians sought continuation of the declarations for twelve months, together with further reviews. The court also considered standard forms of order and associated procedural templates.

1. The court made final orders authorising the continued deprivation of liberty of all seven children for twelve months, with further review in accordance with the principles previously identified.
2. Under arts 2 and 3 of the Mental Capacity Act 2005 (Transfer Of Proceedings) Order 2007, transfer between the Court of Protection and a court having jurisdiction under the Children Act 1989 depends on whether transfer is just and convenient. The court must consider the statutory factors, including whether proceedings should be heard together, whether the alternative court can deal with them more appropriately, and any other relevant matter.
3. The court adopted the considerations identified by Hedley J in B (A Local Authority) v RM, MM and AM [2010] EWHC 3802 (Fam), including the child’s age, capacity, the duration of the relevant disabilities, whether welfare issues can be resolved during minority, the comparative powers and procedures of each jurisdiction, and whether welfare would be better safeguarded in the Court of Protection.
4. Transfer was refused. The existing care orders should not be discharged. They continued to provide protection through the care regime, including looked-after-child reviews and independent reviewing officer support. The Family Court retained a potential role, including in contact issues under s 34 of the Children Act 1989. The local authority teams and guardians were also better placed to continue within the existing jurisdiction, and judicial continuity was easier to maintain. Overall, the benefits strongly favoured retaining the forensic status quo.
5. The court approved draft forms of order for issue, first hearings and final hearings, commended the proposed social work statement and guardian position statement formats, and invited consideration of an additional deprivation-of-liberty question in the C110A form.

This was a first-instance decision following earlier hearings and judgment in the same proceedings. No appeal history is stated.