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Re AM; B (A Local Authority) v RM (2010) EWHC 3802 (Fam)

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(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 could be resolved during AM's minority; (d) her disabilities and acute care needs are lifelong; (e) COP declarations avoid the negative consequences of a care order but still set the framework within which AM's needs can be addressed; and (f) her lack of relevant capacity is manifest. (3) The case was transferred to the Court of Protection under article 3 Mental Capacity Act 2005 (Transfer Of Proceedings) Order 2007 on the judge's initiative, he reconstituted as the Court of Protection to avoid a separate hearing, and made various orders on capacity, best interests, and procedure.

Other

Before: Hedley J

Decision: 15/10/10 (ex tempore)

Ian Peddie QC and Rachael Rowley-Fox of Garden Court Chambers for RM, MM and AM

David Vavreka for the Local Authority

Andrew Ward for CG

Citations

B (A Local Authority) v RM, MM and AM

[2011] All ER (D) 141 (Feb)

The transcript and Bailii has the temporary citation number [2010] EWHC B31 (Fam); Westlaw has the citation [2010] EWHC 3808 (Fam)

Case no: FD08P01576

External link

[2010] EWHC 3802 (Fam) - BAILII

[2010] EWHC B31 (Fam) - BAILII