Mental Capacity Act 2005 (Transfer Of Proceedings) Order 2007
In force 1/10/07.
This Order provides for transfers of proceedings between the Court of Protection and a court having jurisdiction under the Children Act 1989 (c. 41)( “the Children Act”).
Article 2 specifies the circumstances in which proceedings in the Court of Protection may be transferred to a court having jurisdiction under the Children Act and sets out how proceedings are to be dealt with when a transfer is made.
Article 3 specifies the circumstances in which proceedings in a court having jurisdiction under the Children Act may be transferred to the Court of Protection and sets out how proceedings are to be dealt with when a transfer is made.
Article 4 makes provision for treating any fee paid to start the proceedings which are transferred as if it had been the fee payable to start proceedings in the court to which the transfer is made.
Any cases with a hyperlink to this legislation will automatically be added here. There may be other relevant cases without a hyperlink, so please check the mental health case law page.
- Re AM; B (A Local Authority) v RM  EWHC 3802 (Fam) — (1) When considering whether to transfer an application for a care order (under the Children Act 1989) to the Court of Protection (to be dealt with under the MCA) the essential thrust is whether the young person's welfare will be better safeguarded within the Court of Protection. The court will take into account matters such as whether: (a) the child is over 16 (otherwise there is no power); (b) the child manifestly lacks capacity in respect of the principal Children Act decisions; (c) the incapacity is lifelong or at least long-term; (d) all decisions and issues about welfare can be resolved during minority; (e) the COP powers are more appropriate to resolve the issues; and (f) the welfare needs can be fully met using COP powers. (2) AM's welfare would be better protected within the COP because: (a) there should be a court determination about the placement; (b) the court door should remain open during planning the placement; (c) the judge was far from satisfied that the issues ..→