High Court asks CFA to consider its obligations to young people leaving care who lack capacity – 2023vol2#46

In March 2023, the Child and Family Agency (CFA) sought to commence wardship proceedings for a child with complex needs about to leave care. The judge said the CFA needed to think long and hard whether it was appropriate to have a new enquiry into the capacity of the young man, as a new jurisdiction (the Assisted Decision-Making (Capacity) Act) was shortly to come into force, and its aim was to discharge people from wardship.

“Having said that I understand the position here, he is a young man about to turn 18, and you’re seeking the jurisdiction of an applicable body” the judge said. At this point the CFA was seeking the joining of the HSE as a notice party, not seeking welfare orders. The lawyer for the CFA said that, even if there were no welfare orders, they would liaise with the HSE disability service. The question was in what forum questions relating to the young man’s welfare and the supports his foster carers might need should be raised.

The lawyer said that the role of the CFA changed after the child turned 18. However, if the young person had been in the care of the CFA for over a year (as he had), there was an obligation on the agency to set out an aftercare plan until the age of 21, an aftercare allowance and aftercare worker, that was all linked to the time the child had spent in care before turning 18. Essentially this child was not able to live independently and the disability service would have to investigate options to assist. There was a protocol between the agencies which set out their roles and responsibilities, but there was no statutory regime.

A guardian ad litem (GAL) had not been appointed yet for the proceedings, but would be and the court would hear from the GAL at a later hearing.

Medical evidenc was heard that the young man did not have capacity, and was incapable of living a safe and independent life. His problems had been present since birth. The judge said he needed to be encouraged to take part in the proceedings and participate himself, he did have capacity in certain respects. He said he still had some concerns as to whether the wardship route was appropriate but the threshold of appointing the medical visitor was met.

It would be helpful to have the views of the medical visitor. It was very important that the young man’s voice was heard, particularly where his parents were not involved in his life, inter alia because of his own wishes. He reappointed the GAL who had been the boy’s GAL in District Court child care proceedings, joined the HSE as a notice party and set a date for a further hearing.