The Court of Appeal has ruled that the High Court cannot make fresh detention orders under section 9 of the Courts (Supplemental Provisions) Act 1961 for adult wards in proceedings begun after the Assisted Decision-Making (Capacity) Act 2015 came into operation. It dismissed an appeal by the Child and Family Agency (CFA) against a High Court decision on that point.
The appeal arose from proceedings concerning KK, a 24-year-old woman with a mild intellectual disability and a history of self-harm. She was made a ward of court in July 2021. After earlier detention orders, a further application was adjourned in February 2023 for medical evidence. When that evidence was not provided, the applications lapsed. The CFA later sought a new order, relying on a consultant psychiatrist’s April 2023 report. Its application was made after the 2015 Act commenced.
In June 2023, the High Court held that section 9 no longer authorised a fresh detention order in those circumstances. It said the High Court retained an inherent jurisdiction to order detention where medically warranted. A later application under that jurisdiction was dismissed on procedural grounds because it had been issued from the Office of the Wards of Court rather than the Central Office. The Court of Appeal did not decide that separate application or the requirements for an order under the inherent jurisdiction.
The CFA argued that section 9 had not been expressly repealed and that the 2015 Act’s transitional provisions allowed the jurisdiction to continue. The Health Service Executive supported the appeal. The General Solicitor for Minors and Wards of Court and the Attorney General supported the High Court’s conclusion.
Delivering judgment, Mr Justice Gerard Hogan said the new Act’s approach to decision-making was materially different from wardship, which generally removed a person’s autonomy across decisions. The Act instead requires capacity to be assessed for particular decisions and provides for wardship to be phased out. The court also pointed to Part 10’s detention safeguards, including review arrangements for existing detention orders, and found that the Act did not provide for review of new orders made under section 9 after commencement.
The judges held that the section 9 detention power could not operate consistently with the 2015 Act for fresh proceedings of this kind. The ruling was limited to adult wards and detention proceedings commenced after the Act’s commencement; it did not determine whether other section 9 powers survived. KK had been discharged from wardship in January 2024, and the CFA was no longer seeking a detention order, but the court decided the appeal because the legal question was important and likely to recur.
The court dismissed the appeal. It proposed making no order as to costs, with parties given 14 days to tell the Registrar if they wished to contest that proposal.