Case Comment by Helena Spector: Bolton Council v KL [2022] EWCOP 24: Deprivation of liberty and streamlining for 16 and 17 year olds
Helena SpectorThe correct procedure for the deprivation of liberty for those aged between 16 and 17 years’ old has long been a shifting landscape the Court of Protection. A specific facet of this issue – whether the streamlined procedure is appropriate for 16/17 year olds –– was considered in detail by SJ Hilder in Bolton Council v KL [2022] EWCOP 24.
The case concerned KL, a 17-year-old diagnosed with Autistic Spectrum Disorder and severe learning difficulties. KL was non-verbal and has no family contact. It was agreed between the parties that he lacked capacity. The issue with his case arose when Bolton Council made a DoLs application under the streamlined procedure. SJ Hilder removed it from that procedure. Lacking clarity about the correct procedure in cases such as these, the Council sought clarification from the Court of Protection and SJ Hilder set out a detailed explanation of the approach to be taken by the court.
The judgment deals with the following important issues: the jurisdiction of the Court; suitability markers for streamlining; and particular difficulties facing 16-17 year olds in applying to the Court of Protection.
Inherent jurisdiction and the deprivation of liberty
By way of general overview, SJ Hilder summarised the caselaw leading to the Re T (A Child)(Appellant) [2021] UKSC 35 decision, in which it was confirmed that the jurisdiction of the High Court can authorise deprivation of liberty of a child who meets the requisite criteria in a non-secure home, subject to safeguards.
38. In the matter of A-F (Children)(No 2) [2018] EWHC 2129 (Fam), Munby J sitting as a judge of the High Court observed that:
“6. … 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.”
39. So, the inherent jurisdiction of the High Court is available concurrently with the jurisdiction of the Court of Protection to authorise deprivation of liberty in the living arrangements of persons aged 16 or 17. Lady Black confirmed this overlap in Re D at paragraph 71, firmly rejecting the Official Solicitor’s contention that the Mental Capacity Act 2005 Act constitutes a complete (emphasis added) decision-making framework for the care and treatment of those aged 16 and above who lack capacity. She did so
“Not least because there is an obvious overlap between the reach of the Children Act 1989 and that of the 2005 Act, and I can find nothing in the 2005 Act that could be said to indicate a general rule to the effect that, where it applies, it does so to the exclusion of other common law and statutory provisions.”
40. The Supreme Court has revisited the use of the inherent jurisdiction to authorise deprivation of liberty of young persons in Re T (A Child)(Appellant)[2021] UKSC 35. Against a background of shortage of provision of secure children’s homes in England and Wales, it was determined in that case that the inherent jurisdiction of the High Court can be used to authorise deprivation of liberty of a child who meets the s25 criteria in a place other than an approved secure children home where no secure accommodation is available, subject to safeguards. At paragraph 153 of the Supreme Court judgment, Lady Black specifically envisaged “appropriate procedural safeguards” including “provision for the child to be made a party to the process… and for the appointment of a guardian”; and at paragraph 155 she envisaged that the court would undertake “considerable exploration of the circumstances to ensure that the proposal is appropriate.”
The streamlined procedure
The streamlining of youths was at the heart of SJ Hilder’s judgment. She carefully drew out her reasoning about why it would generally be inappropriate to deal with cases concerning authorising DOLs for 16 and 17 year olds on the papers only.
56. The streamlined application was devised to meet the minimum requirements for compliance with Convention and domestic law, by abbreviating the procedural requirements of the standard COP1 application process. The difference between the standard and the streamlined court procedures is the intensity of scrutiny. The COPDOL11 process is very definitely not a ‘rubber-stamping’ procedure but it relies on judicial antennae alone to identify from paperwork if/where further enquiry is required.
57. The application in relation to KL could have been made on form COP1 to the Manchester hub court. The availability of the streamlined application does not make it inappropriate to start proceedings seeking authorisation of deprivation of liberty by the standard COP1 procedures, even where there is no apparent dispute. Just as judicial antennae may pick up matters which require deeper consideration such that the application is taken out of the streamlined procedure, applicants themselves may form the view that, even without active opposition, arrangements need to be probed more actively than the paperwork procedure envisages. I would be slow to criticise an applicant for making the application by COP1 rather than under the streamlined procedure. In my judgment there is little danger that the workload of the Court will be significantly increased by this approach because the ‘streamlined’ nature of the COPDOL11 procedure, with the prospect of quicker conclusion and lower costs, will be attractive to over-stretched applicants wherever possible.
58. Conversely, where an application has been made by COPDOL11 but the judge considers that the streamlined procedure is not appropriate, unless there was an obvious disregard for the intentions of the streamlined procedure (for example, a clear dispute, or a failure to undertake the consultations required to identify whether or not there is dispute), I would be slow to criticise an applicant for having used it. The fact that a judge has identified concerns attests to the robustness of the procedure; it does not necessarily mean that the application was wrongly made.
Age
SJ Hilder went through markers of suitability or unsuitability concerning the streamlined procedure. Unsurprisingly, the first of these was age.
59. Minors are considered in law differently to those who have reached the age of majority in many ways. The streamlined procedure was not devised with 16/17 year olds in mind, for the simple reason that deprivation of their liberty was not a feature of the workload of the Court of Protection at the time. Approval of the streamlined procedure was a compromise taking account of legal requirements and practical workability. In my judgment the tilt of the compromise scales is likely to be different when the particular needs of a 16 or 17 year old are considered.
60. Applications concerning persons aged 16 or 17 are factually distinguishable from the other cases which pass through the streamlined procedure. The 16 and 17 year olds are at a critical stage of their development and at the unavoidable cusp of transition from children’s services to adults’ services. That transition is known to be difficult, too often poorly implemented, for young people who lack capacity to make relevant decisions for themselves even when there is no issue of deprivation of their liberty. Where the issue does arise, it is much more common than for other age groups that ‘best interest’ arrangements are said to require the use of restraint and/or sedation. Not all but many of the 16 and 17 year olds already have a lengthy history of family breakdown, challenging needs and broken placements.
Although the COPDOL11 form refers to requiring proof that P is 16 years old, SJ Hilder was clear that this should not be interpreted as any indication of the streamlined procedure being inherently suitable for 16 year olds.
Care Orders
The second marker of whether the streamlined procedure should be used is whether P has been subject to a care order. Hilder took care to emphasise that while a care order may well be a marker of unsuitability, the absence of a care order cannot be regarded as an indication of suitability.
63. Given that the streamlined procedure was not devised with 16/17 year olds specifically in mind, it is inevitable that neither the judgments nor the Practice Direction make specific reference to the existence of a care order as an indicator either for or against its suitability in a particular case. I do not regard the absence of specific exclusion as positively indicating suitability.
64. A care order is a clear indication of difficult life experience to date. Such orders are only made where the court is satisfied that the threshold of s31 of the Children Act (suffering or likely to suffer significant harm) is met. It means that parental responsibility has been assumed by the state and it means in respect of a 16/17 year old a complicated overlap of legislation. In accordance with the clear position in the Family Court as agreed in Re D, it does not follow from the review obligations on the local authority who holds a care order that the degree of scrutiny required in respect of deprivation of liberty is any way lessened. Authorisation from the court is never a ‘rubber stamp’ of local authority arrangements.
65. A care order is not the only indicator of difficulties to date and legislative overlap. The Court is receiving streamlined applications in respect of 16/17 year olds who are ‘looked after children’ pursuant to section s20 of the Children Act 1989. The factual background in such applications is often very similar to those in which a care order has actually been made, and the legislative overlap is as complicated.
66. The Court is also receiving streamlined applications in respect of 16/17 year olds who continue to live with their families. The nature of the challenges which lead to care arrangements amounting to deprivation of liberty may be different but the state is still involved in the arrangements. Absence of exercise of formal powers does not eliminate the complex statutory overlap. Often in such cases there is an additional layer of complexity in that care arrangements post-18 will be funded by health bodies instead of or jointly with the Local Authority.
67. In short, in my judgment, an extant care order is a marker of unsuitability for authorisation of deprivation of liberty by the streamlined procedure. Conversely, absence of care order is not a marker of suitability of the streamlined procedure for applications concerning 16/17 year olds.
No contact with family members
Although involvement of family members might be a reason for an oral hearing to be held, the inverse proposition does not hold. A lack of contact with family and concomitant lack of scrutiny and different view point would be a marker of unsuitability for the streamlined procedure.
68. Involvement of family members may be considered, as it was by Charles J in Re NRA, as a source of advocacy for P. Even in circumstances where family members are no longer primary carers of young people, continued contact provides an opportunity for hearing a different view, and its absence indicates total dependence on arrangements made by public bodies. Foster care is a form of local authority provision. An independent advocate would be an outside voice but different in kind to that which family members may raise. In my judgment, when an application concerns a minor, absence of contact with family members is an indication of circumstances which require careful scrutiny and accordingly a marker of unsuitability for the streamlined procedure.
The Court also commented that an individual whose transition between child and adult services is imminent is unlikely to be suitable for streamlining.
Difficulties with 16-17 year olds and independent representation
Finally, SJ Hilder commented on the specific issues with the standard “compromise” procedures relating to streamlining and ensuring P’s views are heard. As a summary, she held that a parent or close family member is not sufficiently independent to represent a young person but should have the opportunity of being a party in their own right, foster parents cannot be viewed as analogous to “devoted family members” and an advocate is not in a position to scrutinise the arrangements beyond what is visible or reported ¬– especially where P does not wish to engage.
86. In my judgment, KL’s age at the time of the application, his being subject to a Care Order at the time of the application, his absence of family contact and the imminence of transition to adult services were all reasons which clearly led to the conclusion that he should be independently represented, by joinder as a party and appointment of a Litigation Friend for him. As Litigation Friend of last resort, the appointment of the Official Solicitor was required.
Comment
It is clear that this comprehensive judgment was not handed down on the basis of a single incorrect application procedure used by a single local authority. This is clearly a response to an endemic issue. SJ Hilder commented that she had removed numerous similar cases from the streamlined process and allocated them to a Tier 2 judge. While streamlining was intended to be an efficient compromise, it is clear that the compromise is generally insufficient in the case of 16/17 year olds. The conclusion is as follows: while the Court may not criticise an applicant for bringing an application for a 16/17 year old via the streamlined application, the Court is unlikely to view this procedure as appropriate and an oral hearing with P as a named party and represented with the assistance of a Litigation Friend should be anticipated.
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