The Child Law Project has been attending at hearings of wardship applications concerning children and young people for over a year, and we reported on some of these hearings in our last volume. We continued doing so this year, and publish below four reports of extended hearings over many months of four cases, two of which were also covered in our previous volume.
This is particularly significant at this time as the Assisted Decision Making (Capacity) Act 2015 came into operation in April of this year. This Act will replace the adult wardship regime, which requires people taken into the protection of the State through wardship to be declared “of unsound mind” and to lack capacity. The Act establishes a new legal framework for supported decision-making. The legislation sets out a functional test for the assessment of capacity, meaning that a person’s ability to make a decision is assessed based on the decision that has to be made at a particular time. The test for capacity under the Act recognises that a person’s capacity can change over time, meaning they might need more or less support in the future.
The first cases involving a consideration of the new Act in the context of wardship were attended by the Child Law Project earlier this year. Three of the cases concerned young people who were Wards of Court as children and now were facing into an adult protective regime. One of the cases concerned a young teenager where wardship was under active consideration. It is significant that the new Act does not cover children between the ages of 16 and 18, but none of the young people in these cases fell into this category.
Of the four cases published here, one concerns a person who had been in special care for years and had been made a Ward of Court in 2020 when the court found that she was unlikely to regain capacity, yet, more than two years later and after intensive input from various State services, this person was found to have regained capacity, was discharged from wardship and urged to accept ongoing supports from the HSE.
In another case orders the judge accepted the view of the psychiatrist engaged by the general solicitor to present a report on a young man’s capacity, that he did not in fact lack capacity, and therefore was not eligible for wardship. However, the young man did have high levels of need and two other psychiatrists were of the opinion he did not have capacity. Nonetheless, all agreed on a package of care, which involved him living independently with daily and weekly visits from mental health professionals, with particular emphasis on his taking medication daily. The judge made orders under Section 22 of the Assisted Decision-making (Capacity) Act transferring him to the psychiatric unit of a named hospital in order to stabilise his medication, in preparation for his further transfer to independent living, with ongoing liaison between the HSE and the Gardaí with regard to his mental condition and behaviour.
The third case involves a boy with autism and an unusual eating disorder who was about to turn 18. The discussion in court centred on the appropriate services that would be available to him when he was no longer eligible for CAMHS, as he would no longer be a child. He would also no longer be able to remain in his placement, described by his guardian ad litem (GAL) as “excellent”. CAMHS had made a referral to the HSE adult mental health services, and the CFA was also seeking to transfer him from child to adult wardship. This will involve an assessment by the High Court medical assessor, which had not yet taken place. Meanwhile, the existing services were seeking to manage his transition from minorship to adulthood and assess what services might be available. It was stated that he did not have a mental health disorder under the Mental Health Act which would have provided for his detention and treatment when he turned 18.
The court heard that the young man, who had previously been largely non-verbal but had started to speak, had indicated that he would be contesting the wardship application. That has yet to be heard.
The final case we report involves a younger child whose mother had asked for him to go into care due to his behavioural problems. He had complex needs, and had spent 12 months in a HSE disability placement. The Child and Family Agency (CFA) had applied for him to be taken into wardship, but the case has yet to be heard. This is likely to be opposed, as his mother has expressed the wish for him to go home.
All of these cases, and others reported previously, reveal how complex the issues surrounding wardship are. A diagnosis of mental health illness does not mean a person does not have capacity. Other issues, including cognitive disability and substance abuse, may impair capacity and under the new Act these might mean that a person has capacity in certain areas but not in others. Also, as is demonstrated by the first case referred to above, a person can, through dealing with their substance abuse and engaging in all available services, regain capacity.
These cases also demonstrate the intensive supports that can be provided to people under the protection and supervision of the court through wardship. A range of State agencies are involved in seeking to provide all necessary assistance, including appropriate accommodation, to people with a variety of mental and physical needs in wardship. However, as is seen in other reports in this volume, such supports are often not easily obtained by other children and young people, who do not meet the very strict criteria that bring them into wardship.
