Disgruntled parents challenge court


Posted by Nicholas Buckman, 30th July 2019
Are you being ignored and decisions taken about your child without your being consulted? Mental Capacity specialist Nicholas Buckman looks in detail as parents challenge the court.
  • It can be very challenging for you as a parent who has been solely responsible for that child’s welfare up until they attain the age of 18 to be suddenly told that under the Mental Capacity Act decisions on the child’s benefit must now be taken collectively by everyone interested in their welfare.
  • This results in Social Services taking the decisions not knowing the child and that funding maybe a more important factor than what is in the child’s best interests.

Parents who are aggrieved by this have made representations to the Court of Protection for the Code of Practice which interprets the Mental Capacity Act to be amended.  This would enable parents to be granted the decision making authority on behalf of their child which would correspond with their child’s wishes which would be deemed by the Courts to be in the young person’s best interests.

At the moment only a handful of Orders are made providing the authority for the parent and these are rare or in complex cases.

A judgment has now been handed down by the Honourable Mr Justice Hayden ruling that there should not be a statutory presumption against the appointment of a Welfare Deputy and that the wording of the Code of Practice requires to be revisited.

The judge stated: “The starting point in evaluating any application for appointment of a Welfare Deputy is by reference to the clear wording of the Mental Capacity Act 2005 and that the wording of the Code of Practice which refers to the most difficult cases should not be regarded as the statutory prompt and needs to be revisited.”

All that disgruntled parents want is to be able to help their child to have the best choice in life but feel this is not happening because of how the law was being interpreted.  It is hoped that Parent Welfare Deputies will become more common place in the future.

However, the judge has suggested that in the majority of cases a Welfare Deputy will not be required, but it is considered that it would be in the best interests of the family to be eligible to continue to make decisions on the child’s behalf where they are unable to make their decisions themselves.

If you wish to discuss any part of the judgement or how this may affect your children please do not hesitate to contact Nicholas Buckman or find out more from our Court of Protection team.

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