What happens for children aged 16-18 in care proceedings who lack capacity?
The question of what is meant by capacity is dealt with in another post which looks at the MCA 2005 more generally.
The MCA is intended to apply to adults who lack capacity – decisions about children should be resolved under the Children Act 1989. A ‘child’ is a person aged under 18 years. However, it is clear that a number of provisions in the Children Act do not apply to children aged between 16-18 or apply only in ‘exceptional circumstances’. A care order is one of these.
This reflects the growing autonomy of the ‘neuro-typical’ teenager who is highly likely to be ‘Gillick competent’ by the age of 16 years and thus able to make his or her own decisions about everything other than the most serious matters (refusal of life saving medical treatment for e.g.)
But what happens when you are dealing with a teenager who isn’t ‘neuro-typical’? Section 2(5) of the MCA 2005 provides that the powers of this Act apply in general only to people who are older than 16 years. But sections 2(6) and 18(3) provide that powers under the Act could be exercised about property and financial affairs for a child whose lack of capacity would continue into adulthood.
If it is not a question of managing property or finances, section 21 of the MCA allows for transfer to and from the Court of Protection and the Family Court. Paragraph 3 of the Mental Capacity Act 2005 (Transfer of Proceedings) Order 2007 allows a court having jurisdiction under the Children Act to direct all or some of the proceedings in the family court to the Court of Protection where ‘in all the circumstances it is just and convenient to transfer the proceedings’.
Paragraph 3(2) sets out what the Family Court must think about:
- whether the proceedings should be heard together with any other proceedings that are pending in the Court of Protection
- whether any order that may be made by the Court of Protection is likely to be a more appropriate way of dealing with proceedings
- the extent to which any order made about a child is likely to continue to have effect when the child is 18
- Any other relevant factors
Help in understanding what could be another a ‘relevant factor’ is found in the judgment of Hedley J in the case of B (A Local Authority) v RM, MM, and AM  EWHC 3802 (Fam). He posed the following questions:
- Is the child over 16 years old – the MCA can’t apply otherwise
- Does the child clearly lack capacity to understand the main decisions in the Children Act proceedings
- Is this lack of capacity due to life long or at least long term disabilities
- Can all the decisions that need to be made about the child’s welfare be resolved during the child’s minority?
- Are the powers of the Court of Protection more appropriate to resolve problems that the powers under the Children Act
- Can the child’s welfare needs be fully met by the Court of Protection
Continued involvement of the Children’s Guardian
A further practical consideration is that transferring a case from the Family Court to the Court of Protection is likely to lead to the children’s guardian dropping out of proceedings, unless the Official Solicitor (who would then represent the child) agreeing to re-instruct the guardian as an independent social worker. This would clearly be a pretty cumbersome procedure. There will also be implications for continuing public funding for the parents if the matter transfers entirely to the Court of Protection; their continued ability to benefit from legal aid will be subject to a means and merits test.
A solution to this problem would be to continue the care proceedings but at the final hearing, adopt the approach set out in Re B above and ask the Judge to also sit as a Court of Protection judge in order to make the appropriate declarations about the child’s capacity and any orders under section 16 of the MCA to promote the child’s welfare.
- For discussion of what happens when a teenager ‘transitions’ from the Children Act to the Mental Capacity Act and the impact this can have on provision of services, see this useful article ‘Growing up under the Mental Capacity Act: The Twilight Zone of 16-18 year olds’
- When considering deprivation of liberty with regard to 16 year old see Re D (A Child) (Deprivation of Liberty)  EWHC 922