Sir James Munby ruled that proceedings in relation to 16 and 17 year children who were subject to care orders and DOLs should remain in the Family Court and not be transferred to the Court of Protection.
The starting point is that 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. The question, therefore, has been raised as to whether these cases should remain in the Family Court (in relation to the care proceedings) and the Family Division (in relation to the parens patriae proceedings) or be transferred to the Court of Protection.
The President concluded that the benefits weigh heavily in favour of maintaining the forensic status quo. There were no reasons for thinking that the children’s welfare would be better safeguarded within the Court of Protection. Also attached to the judgment are three forms of order prepared by the President: (i) directions on issue; (ii) order following first hearing; and (iii) order following final hearing.
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