Applications to detain former Wards of Court can be made under inherent jurisdiction of High Court, following commencement of Assisted Decision-Making (Capacity) Act – 2023vol2#45

The High Court refused an application from the Child and Family Agency to extend the detention of a young woman who had been a Ward of Court, in the light of the coming into force of the Assisted Decision-Making (Capacity) Act (ADMCA), which replaces the adult wardship regime.

The Child and Family Agency (CFA) had argued that the jurisdiction of the wardship court continued to apply, and this was rejected by the High Court. However, the court ruled that the CFA could renew its application to detain the girl under the inherent jurisdiction of the High Court, through the court’s Central Office.

The judgment followed lengthy proceedings in the High Court. The young woman in question had been in care since shortly after she was born. Since she turned 18 the HSE had also been involved in planning for her future care. She was living in a residential placement with carers. She had been diagnosed as having a borderline mild intellectual disability, low adaptive functioning and a history of self-harm. Before she turned 18, two years before this application, a wardship application was granted and detention orders made, as she had a history of absconding. However, they were discharged in the summer of 2021 when it was felt she was not likely to abscond.

This changed in December of 2021 when she met a man online who came to her placement. She had sexual relations with him, and he was very aggressive to staff, requiring the Gardaí to be called. Staff considered she was at risk, the CFA obtained a further detention order in the summer of 2022 and also orders restricting her access to her smartphone and social media. The orders sought included permitting An Garda Síochána to find and return her to her placement if she absconded and that she could be detained under the Mental Health Act. The CFA sought an extension of the various orders, but this was refused by the High Court judge in February 2023, as no medical evidence had been adduced justifying their extension.

A medical report was provided to the court in April 2023 stating that the young woman did not have the capacity to meet her own needs and make informed decisions about herself or to live independently. It stated that she had no insight into her limitations or vulnerabilities, and had the functioning of a 12/13-year-old. She did not have the capacity to enter safe platonic and sexual relationships and was vulnerable as a result. The CFA sought an order permitting the manager of the residential unit to regulate, and, if necessary, terminate the young woman’s use of the unit’s landline, as she had been using it to contact the man in question.

The young woman, through her Committee (the General Solicitor), who retained a solicitor and barrister, had expressed a wish to leave wardship. She also expressed her views to the court directly via video-link.

She acknowledged that she had made mistakes in the past, including in relation to this man. However, she wanted to get a phone, she said she felt trapped by wardship and she had a good relationship with her current boyfriend, though she had not been able to spend time with him. She wanted to go out on dates and get married some time.

By April the Assisted Decision-Making (Capacity) Act, intended to replace the wardship regime, had come into force, and the court was asked to consider whether it had jurisdiction to continue orders made under wardship proceedings, or whether, in order to make detention orders, the court needed to use its inherent jurisdiction. After reserving judgment, in June the judge decided it did not have the power to make new detention orders under the wardship regime, and could only do so under the court’s inherent jurisdiction. The court stated that the court’s power to detain people lacking capacity and make orders for their care and treatment survived the enactment of the ADMCA. However, the Act did have an impact on the manner in which the court would evaluate an application, the judgment said.

The judge then asked for further submissions on the appropriateness of making the orders sought in this particular case.

In the meantime, in May, after the submissions were made and before the judgment was delivered in October, new Rules of Court were adopted providing for applications for a person’s care, treatment or detention, outside the terms of the ADMCA, to be made under the court’s inherent jurisdiction to the Central Office. In October, a Practice Direction on Inherent Jurisdiction (Capacity) Applications was adopted, stressing that these applications were entirely distinct from wardship applications and should go to the Central Office. Therefore the applications in this case, which had originated in the Office of Wards of Court, had to be refused and made afresh to the Central Office, if that was the intention of the CFA, the judgment stated.

Assuming that this was the case, the judge outlined the types of proofs likely to be required in such an application and some specific issues that would need to be addressed. This included medical evidence from a party other than the CFA as to the young woman’s capacity to enter safe romantic and sexual relations, and stating whether her detention was necessary to vindicate her constitutional rights.

The judge considered a number of judgments from the superior courts concerning the inherent jurisdiction of the High Court to detain a person in order to vindicate their rights to life and welfare, where it was stressed that this power should be used sparingly and there should be clarity about its application, so that citizens could understand the circumstances in which it might occur.

The ADMCA does not provide for the detention of people lacking capacity, and the judge remarked: “Because the legislature has not legislated to provide for the detention of persons lacking capacity, it falls to the judiciary to identify the circumstances in which its inherent jurisdiction should be invoked in order to detain such people.” She noted that legislation on Deprivation of Liberty Safeguards was planned, so the use of the inherent jurisdiction was an interim arrangement.

“I am of the view that it cannot be the case that persons can be deprived of their liberty, often for significant periods of time, without being made aware of the circumstances in which that may take place and the conditions that will govern that detention,” she said.

The judge began by considering the issue of capacity, referring to the approach in the ADMCA, where capacity is evaluated on a decision-specific basis. In many instances this will already have been established through the wardship process. However, the judge said that in this particular case, there was one aspect of the young woman’s capacity she would like to revisit, her capacity to enter safe romantic and sexual relationships. A medical report found she “lacks capacity to enter safe platonic and sexual relationships”. That finding effectively formed the basis for the current application.

She said this finding had very serious consequences for her. It meant that, were the orders to be granted, she would be entirely prevented from forming any romantic or sexual relationship, or taking any steps to do so. “For a young woman of 20, that is a very significant restriction indeed.”

When wardship applications were made, there were at least two sets of medical reports, one seeking to establish a lack of capacity and one from the court’s medical visitor. The judge said it was desirable that in an application under the inherent jurisdiction of the court that there should be a medical report from a party other than the CFA.

In considering an application to detain a person for their own protection and safety, the right to liberty had to balanced against various other constitutional rights. This balancing now had to take place within the context of the ADMCA, which gave enhanced legislative weight to the autonomy of persons deemed to lack capacity. Once the court decided which rights should prevail, it was necessary to consider the nature of the detention proposed and whether this was the least restrictive and proportionate way to vindicate the right requiring protection.

Stressing the importance of at least two medical reports, she said “where there is a difficult judgment call to be made as to whether detention should be ordered or not, it is of significant assistance to the Court to have a second view. Whether that view comes from an independent medical expert retained by the Court or whether it comes from medical experts retained by the person sought to be detained is, in my view, not of significance.” She said it was not appropriate to establish immutable rules in this regard, but this was the optimum approach.

Turning to the issue of the views of the person affected by the application, the judge pointed out that hearing their views was the approach of the European Convention on Human Rights, reflected in the ADMCA. While the exercise of inherent jurisdiction was not an application under the ADMCA, it was appropriate to take its approach into account. “At a minimum, any court hearing an application of this type must be satisfied that a person is represented by a person competent to assist them in responding to the application… Separately, a court should ensure that the views of the person themselves have been heard.” How this would be achieved would be a matter for the court, depending on the circumstances.

In this case, the young woman had participated via video link and had given the court her views, and she was ably represented by the Committee and its legal representatives. The judge said it was desirable that this approach should be taken in any further application made by the CFA.

She concluded by refusing the application, and stated that a future similar application should be made by way of a Notice of Motion lodged in the Central Office. It should include medical evidence from a party other than the CFA concerning the young woman’s capacity to enter safe romantic and sexual relationships and the necessity for detention-type restrictions, having regard to her constitutional rights.

The High Court judgment can be read at: