DOL applications for those under 18: An update

National Deprivation of Liberty Court and Bolton Council -v- KL [2022] EWCOP 24

National Deprivation of Liberty Court

The number of applications seeking authorisation for the deprivation of liberty for children has continued to grow and on 4 July 2022 the National Deprivation of Liberty Court (NDLC) was launched. This is not a new court as such; rather it is a newly dedicated part of the High Court Family Division based at the Royal Courts of Justice (RCJ). It will deal with all new applications under the Inherent Jurisdiction in the High Court for those under 18 (usually remotely) and provides the High Court with an administrative framework to determine which applications should (1) be retained and dealt with by Family Division judges in the RCJ; and (2) returned to circuit because they are connected to care cases to be dealt with by judges also authorised to sit in the High Court (‘s.9 judges’) for determination concurrently with care cases. It is hoped that the NDLC will also provide crucial data to better understand the nature of the restrictions being imposed on children and young people, where they are placed, and outcomes. The data will be published regularly on the Nuffield Family Justice Observatory website. 

The COP, Under 18s and the Streamlined Procedure

The COPDOL11 streamlined procedure (known as ‘Re X’ following the cases which set out the application process) reduces the standard procedural requirements otherwise required in the Court of Protection. These applications are considered on the papers only ie the judge considers the COPDOL11 application and supporting documents and, if satisfied, makes an order authorising the deprivation of liberty. Judicial scrutiny is considered to be more intense in the COP1 application where P will usually be legally represented, assisted by a litigation friend, and an oral hearing listed. For the reasons set out by the Senior Judge of the Court of Protection, HHJ Hilder in Bolton Council -v- KL [2022] EWCOP 24, making a COPDOL11 application is unlikely to be considered appropriate where authorisation is sought for a deprivation of liberty for 16/17-year-olds – ie on the papers because of the following:

1. Age – The COPDOL11 procedure was not devised with 16/17-year-olds in mind and the less intense scrutiny is not appropriate for young people with complex backgrounds and needs, who will shortly become adults and transition to adult services.
2. Care Orders – If P has been subject to a care order or is a looked after child, it is a clear indication that robust scrutiny will be required and the COPDOL11 procedure is unlikely to be suitable. The fact that P has not been subject to a care order or is not a looked after child should not lead to the conclusion that it is suitable.
3. Contact with family members - No contact with family members will indicate that the case requires careful scrutiny and that the COPDOL11 procedure is not appropriate.
4. Imminent Transition - If P’s transition between child and adult services is imminent the case is unlikely to be suitable for the COPDOL11 procedure.
5. Difficulties with 16/17-year-olds and independent representation - Parents and foster parents are not sufficiently independent, and appointed advocates are not in a position to robustly scrutinise arrangements ie P will in all likelihood benefit from the representation that does not feature in the COPDOL11 procedure.

In summary, these factors mean that it is unlikely to be appropriate to make a COPDOL11 application seeking authorisation of a deprivation of liberty for a 16/17-year-old, and COP1 applications should generally be made in these cases even where there is no identifiable dispute. However, an applicant is unlikely to be criticised for making a COPDOL11 application (unless proper preparation, which would have indicated that a COP1 should be made, has not been carried out) because the court can take the case out of the COPDOL11 pathway if necessary. Being overly cautious and making a COP1 application when a COPDOL11 would have been appropriate (which will be rare in these 16/17-year-old deprivation of liberty cases) is also unlikely to lead to criticism.