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New guidance on the streamlined procedure for the deprivation of liberty of 16 and 17 year olds

View profile for Sophie Maloney
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In the case of Bolton Council v KL [2022] EWCOP 24 Her Honour Judge Hilder provided guidance on when the streamlined procedure to authorise a deprivation of liberty may not be appropriate.

The streamlined procedure enables the Court of Protection to authorise a deprivation of liberty (DoL) on the papers i.e. without the need for a court hearing – this minimises time and costs for authorising a deprivation of liberty, where there are no concerns/objections that the arrangements are in the individual’s best interests. The streamlined procedure is known as the ‘Re X procedure’, established in the case of Re X and others (Deprivation of Liberty) [2014] EWCOP 25 to deal with large volumes of applications to authorise a deprivation of liberty. It is a more proportionate and efficient way of authorising any non-contentious deprivations of liberty in the community (where care is provided outside of care homes and hospitals).

KL was born in November 2003. KL had no contact with either of his birth parents or any of his siblings, being subject to a care order in 2006. He had been known to social services since birth, and had lived with foster carers since he was four years old. He was diagnosed with autistic spectrum disorder and severe learning difficulties. It was agreed and accepted by the court that he lacked capacity to make the necessary decisions about his residence, care and the resulting deprivation of his liberty.

The Mental Capacity Act 2005 applies to those lacking capacity over the age of 16, so a decision needed to be made by the court in KL’s best interests, including authorisation of the deprivation of his liberty.

Bolton Council made an application to the Court of Protection to authorise the deprivation of his liberty under the streamlined procedure when he was 17 years old.

However, Her Honour Judge Hilder removed the application out of the streamlined procedure and invited the Official Solicitor to act as Litigation Friend for KL in the case. The reasons provided were:

  1. KL is just 17 years old
  2. He has been subject of a care order since 22nd March 2006
  3. He has no family contact
  4. There will be transition to adult services within 12 months
  5. He should be independently represented.

The judge commented that the streamlined procedure was not designed with 16/17 year olds in mind, explaining that people aged 16 & 17 are at a ‘critical stage of their development and at the unavoidable cusp of transition from children’s services to adult services’. She also commented that ‘not all but many of the 16 and 17 year olds already have a lengthy history of family breakdown, challenging needs and broken placements’ [para 60].

It is also worth noting that if a 16 or 17 year old is to be lawfully deprived of their liberty, authorisation from a High Court judge is required. This would be a ‘tier 3’ judge in the Court of Protection. The judge therefore noted her concern about adopting a paper-based approach to 16 and 17 year olds, commenting that there ‘would be a disparity of approach very difficult to justify’ [para 61].

In her conclusion, Hilder considered that the streamlined paper process to consider the decision to authorise the deprivation of KL’s liberty was not suitable due to KL’s age at the time of the application, him being subject to a care order, his absence of family contact and the imminence of transition to adult services  

At paragraph 87 of her judgement, Hilder provided some guidance for the court to assist in future similar cases (but stressed that each case must be considered on its own merits);

a. The court is unlikely to consider that the streamlined procedure is appropriate for authorisation of deprivation of liberty in the living arrangements of 16/17 year olds; and

b. the court is unlikely to be critical of an applicant for bringing an application for authorisation of deprivation of liberty in the living arrangements of a 16/17-year-old either by COP1 application to the appropriate hub court, or by streamlined application to the central registry at First Avenue House… if / when an in-person attended hearing is required, consideration will be given to transfer to a local hearing centre.

How this guidance may develop as the Liberty Protection Safeguards are implemented (date to be confirmed at the time of writing) remains to be seen.