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Sir James Munby’s address to LAG
Sir James Munby’s address to the LAG Community Care Law Conference is now available online.[1] The address is separated into two main parts. First, Sir James considers “the continuing fall-out” from the Supreme Court’s decision in Cheshire West, particularly in respect of children. Secondly, he identifies various challenges which arise from the approach outlined in N v A Clinical Commissioning Group and others [2017] UKSC 22M.
Fall-out from Cheshire West for children
Sir James’ first main observation was the difficulty (yet importance) of applying Lady Hale’s “acid test” from Cheshire West to children. In other words, in what circumstances is a child subject to a deprivation of liberty within the meaning of Article 5?
With reference to his decision in Re D [2017] EWCA Civ 1695M, and stressing that the Supreme Court’s judgment in the case was pending, Sir James reiterated his view that whether there has been a deprivation of liberty in a child case will turn on the age of the child in question.
As for the age at which the “acid test” bites, Sir James relied on his observations in Re A-F [2018] EWHC 138 (Fam)M.at paragraph 43:
One has to proceed on a case-by-case basis having regard to the actual circumstances of the child and comparing them with the notional circumstances of the typical child of the same "age", "station", "familial background" and "relative maturity" who is "free from disability". Little more than "rule of thumb" suggests:
(a) A child aged 10, even if under pretty constant supervision, is unlikely to be "confined".
(b) A child aged 11, if under constant supervision, may, in contrast be so "confined", though the court should be astute to avoid coming too readily to such a conclusion.
(c) Once a child who is under constant supervision has reached the age of 12, the court will more readily come to that conclusion.”
In light of this, Sir James went on to stress that the resource implications of having to deal with such cases on a “case-by-case” are very considerable, and this is in the context of a system which is already under great pressure.
Sir James then addressed another “fall-out” of Cheshire West, and the question at the heart of Re D: whether parental power extended to giving consent to the “confinement” of a child who is 16 or 17 years old. He explained that – in his view – the answer lies in the House of Lords decision of Gillick. Therefore, in a case where the child has not yet acquired “Gillick capacity,” the parents are able to provide consent for a deprivation of liberty beyond the child’s sixteenth birthday. He speculated that the confusion in this area, and failure to appreciate the relevance of Gillick, had arisen because these sorts of cases lie at the intersection of three different fields of domestic law, each served by a different set of legal specialists: [t]he existence of these institutional and professional silos has bedevilled this area of the law.”
Challenges arising from N v A Clinical Commissioning Group
As for N v A Clinical Commissioning Group, Sir James reminded us the Court of Protection cannot direct that resources be made available or that services be provided; it can merely seek to persuade. As to the correct approach to be taken by the court in this regard, Sir James referred to the principles set out when the case was before the Court of Appeal ([2015] EWCA Civ 411M):
34. …the court, if it seeks to alter the local authority’s care plan, must achieve its objective by persuasion rather than by compulsion.
35. The said, the court is not obliged to retreat at the first rebuff. It can invite the local authority to reconsider its care plan and, if need be, more than once… How far the court can properly go down this road is mater of some delicacy and difficulty. There are no fixed and immutable rules. It is impossible to define in the abstract or even to identify with any precision in the particular case the point to which the court can properly press matters but beyond which it cannot properly go. The issue is always one for fine judgment, reflecting sensitivity, realism and an appropriate degree of judicial understanding of what can and cannot sensibly be expected of the local authority.”
That is all very well in principle, but as Sir James pointed out with reference to some of his recent cases, the application can be highly problematic. In particular, Sir James was concerned that cases involving vulnerable children being inadequately supported by the State were being transferred “up” to senior judges in the hope that such judges are more “persuasive.” In so doing, however, he suggested, the line between persuasion and compulsion became increasingly blurred. Further, there were no means of ensuring that the most needy cases were prioritised.
Sir James concluded, however, that this is the lesser of two evils:
…what is one supposed to do? What is the alternative? Wash one’s hands and wait for an inquest, followed by much hand wringing, “we have all learnt lessons, it will not happen again”? I think not. There are occasions, and surely Re X was one, where, pace Lord Sumption, a judge in a family court or in the Court of Protection is duty-bound to act even if the prime responsibility lies elsewhere. I am unrepentant.
Comment
The Supreme Court’s decision in Re D is much anticipated, with many hoping that it will provide valuable clarity in respect of the way in which the law on deprivations of liberty applies to those under 18. As Sir James suggests, however, clarity of principle is one thing, but, in an area of law where the “correct” approach is often inextricably tied to an assessment of the individual facts, challenges for judges, decision-makers and practitioners are set to remain. Of course, the challenge is further heightened by inadequate resourcing of a system which is under ever increasing pressure.