Under the Children and Families Act 2014 (CFA 2014), a child will become a young person once they reach the end of compulsory school age. At that point parental rights under the CFA 2014 will pass to the young person.

Involvement of parents

The SEN and Disability Code of Practice 2015 (the Code) makes it clear that once a child becomes a young person, local authorities (LAs) and others should normally engage with the young person rather than their parents. However, the Code also makes it clear that the young person's family and parents should continue to be involved in discussions about the young person's future. The young person may also ask their parents to help in other ways such as attending meetings, filling in forms or receiving correspondence on their behalf. This is particularly important for 16 and 17 year olds, whose parents retain parental responsibility until they reach the age of 18.

The concept of ‘mental capacity’

The legal concept of mental capacity is set out in the Mental Capacity Act 2005 and the Mental Capacity Act Code of Practice, which is statutory guidance.

The question of whether a young person has mental capacity to make a particular decision or not has to be considered on an individual basis in the light of the circumstances at the time. You cannot just say that someone lacks mental capacity generally. For example, whilst a young person may be able to make daily decisions, such as what choice of dinner they want or things they would like to learn about, they may not be capable of deciding what school or college they want to attend. If a young person lacks the mental capacity to make a particular decision, then someone else (usually their parent) will be able to make that decision for them.

A person is assumed to have capacity unless there is evidence that they are not able to make the relevant decision. Someone is treated as being unable to make a decision if they are not able:

• to understand the information relevant to the decision,
• to retain (keep in mind) that information,
• to use or weigh that information as part of the process of making the decision, or
• to communicate their decision (whether by talking, using sign language or any other means).

Before concluding that a young person is unable to make a decision, all practicable steps should be taken to help them make the decision without success.

 You may find using a decision making profile helpful. Importantly, the Mental Capacity Act 2005 is clear that a person is not to be treated as unable to make a decision just because they make an unwise decision.

If a young person lacks capacity to make a particular decision, the person making the decision on their behalf must act in the young person’s best interests.

Agreement

Parents and young people need to work out whether a young person has mental capacity to make a particular decision in the first instance, using the Mental Capacity Act 2005 and the Mental Capacity Act Code of Practice to help them.

When it is agreed that a young person does not have capacity to make a decision they would otherwise be entitled to make under CFA 2014 , then the parents will automatically make that decision (in the way described above) for them unless the Court of Protection has appointed a different person to be the young person’s Deputy. The local authority would also still have to seek the young person's views as part of any decision-making process.

Disagreement

There might be disagreement between the parents, the young person, the school or college being attended, and/or the local authority, regarding a young person's mental capacity to make a decision. If this happens  then it will be necessary to seek a professional opinion of the young person's capacity to make the decision.

The Mental Capacity Code of Practice confirms that this opinion could come from a psychiatrist, psychologist, speech and language therapist, occupational therapist or social worker. It might also come from someone like a GP or other medical professional who is involved with the young person. It is very important that such assessments are done by professionals who have acquired the necessary skills. Where there is disagreement, a decision on a young person's mental capacity should not be made by a school/college

A mental capacity assessment might be helpful to support a parent who wished to take a decision under the CFA 2014 on behalf of a young person but was being challenged by a local authority about their right to do so. A parent would be expected to explain the basis of their belief that the young person lacked capacity and an assessment might help them to do so. Such an assessment may not be necessary in all cases, depending on the other evidence available to support the parent's belief.

If a disagreement about mental capacity to make a decision happens during an appeal to the First tier Tribunal (Special Educational Needs and Disability) (SEND Tribunal), the SEND Tribunal should be told as soon as possible and it will tell the parties what information it wants to make a decision about this.  The SEND Tribunal will decide whether or not the young person has the mental capacity to make the specific decision in these circumstances.