Holman J noted that: 'it is possible (I put it no higher than that) that the accuracy of that part of the guidance is more debatable. It may beg the question of whether paragraph 17A(1)(c) of the regulations is a platform or a ceiling. But that is territory into which I simply should not and do not venture in the present case because paragraph 4 of the guidance is directed to “a child” and, as I have stressed, the patient in this case is not a child.'
'The essential point and difficulty that has been raised by this case, and maybe a large number of other cases,' Holman J identified at paragraph 46, 'is that readers of the guidance have understood it to be preclude any resort to the Court of Protection at all, in any circumstances in which the premises in which a person (whether a child or an adult) is residing or detained happen to be premises which are a children’s home as defined in section 1(2) of the Care Standards Act 2000. It is, however, necessary to stress and emphasise yet again that the point that has been made in both paragraphs 3 and 4 of the guidance is that the Court of Protection cannot authorise an act which would involve or represent a breach of the regulations. That simply does not arise and is not in point in any case in which the person concerned has attained the age of 18.'
' The short and simple point is that the relevant parts of the Children’s Homes Regulations 2001 simply do not apply at all in the case of a person who is no longer a child. It may often happen, as it has happened in this case, that the premises in which a person, now adult, resides or is detained happen also to be a children’s home. But it frankly makes no difference whether the premises themselves are a children’s home or are some dedicated premises that have been provided in the community under the kind of “supported living model” contemplated for this very patient in this very case.
 In my view, the Court of Protection has undoubted power in the present case to make, if appropriate, an order authorising the deprivation of liberty. Further, it is the duty of the person or body, in this case the local authority, who is or are depriving the patient of his liberty, to apply to the court for an authorisation; and, indeed, the duty of the court to make such authorisation as in its discretion and on the fact and in the circumstances of the case it considers appropriate.'
It should, finally, be noted that the judgment represented the judicial endorsement of an agreed position. At para  of his judgment, Holman J was at pains to note that he had not heard any arguments to the contrary such that: '[i]f, in some other case, on a future date, some party wishes to argue to the contrary, then of course that limitation or reservation upon the value of this ex tempore judgment as a precedent may be noted.'
It is fair to say that the Guidance (which, as we noted at the time, was not issued as the result of a specific case) has caused a considerable degree of concern amongst lawyers and providers. This judgment provides very helpful clarification in relation to one category of those who appeared to be caught by it – ie those over 18 who continue (for whatever reason) to be placed in a children’s home subject to the 2001 Regulations. It is unfortunate – but perhaps not all surprising given the facts of the case before him – that Holman J did not venture on to hold as to the Court of Protection’s powers in relation to those below 18. It appears, however, likely that the issue will be determined in relatively short order given the terms of an email from the Treasury Solicitor before Holman J in which the case-holder indicated that he was 'instructed on behalf of the Secretary of State for Education in a number of cases which raise the issue as to whether children who are resident in non-secure children’s homes or residential special schools are being deprived of their liberty in such settings following the decision of the Supreme Court in Cheshire West & Chester Council v P.' As the email continues:
'If they are being deprived of their liberty, that in turn raises further issues as to how any such deprivation of liberty is to be authorised. This involves a careful consideration of the terms of the Children’s Homes Regulations 2001, the Education (Non-Maintained Special Schools) (England) Regulations 2011, and the National Minimum Standards for Children’s Homes and Residential Special Schools. For children over the age of 16, it may also raise issues as to the terms of the joint guidance published by OFSTED and the President of the Court of Protection in February 2014.
These issues potentially affect a large number of children and young people who lack capacity but who currently reside in non-secure children’s homes or residential special schools. By way of example only, as at 31st March 2014, there were more than 6,500 over 16 year olds residing in care homes, children’s homes or residential special schools. The Secretary of State has not yet been able to determine the proportion of those 6,500 odd young people who may lack capacity.'
Yet again, therefore, as the ramifications of the Cheshire West
decision continue to unfold, it is a question of watching this space.
This article was originally published on the
Mental Capacity Law and Policy website and has been reproduced here with permission of the copyright owner.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.