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Children's Services - public law update January 2021

Acland Bryant rounds up some key rulings in public law children cases in January 2021.

Application by the Local Authority to not to disclose a child’s existence to his father and maternal family

A Local Authority v JK & Anor [2021] EWHC 33 (Fam)

Background - These proceedings concerned W who was born on 19 February 2020 and was at the time of the hearing 10 months old. The mother (“M”) decided to relinquish W for adoption before he was born. M believes that she cannot give W the care he needs. M does not want the father (“F”), or any of the wider families, to be told of W’s birth or the adoption proceedings, or to be considered as possible carers.

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Three days prior to his birth, M notified the Local Authority (“LA”) that she wished to place her child for adoption. W was placed with prospective adoptive parents shortly after birth. The LA applications, dated 3 September 2020, were for: i) An order under FPR Part 19 and rule 14.21 endorsing its decision not to disclose W's existence to his Father in proposed adoption proceedings, or at all; and ii) An order under the inherent jurisdiction endorsing its decision not to disclose his existence to the maternal grandparents. The LA’s applications were strongly supported by M. The child's guardian (“G”) opposed the applications. 

Held - Mr Justice Peel (“J”) held that the LA’s applications should be dismissed for the following reasons: i) There was an unacceptable delay in issuing the application which was issued when W was about 7 months old; ii) The evidence presented about F is limited and not sufficient for him to be excluded on a summary basis from being a possible carer or from playing some other more limited role in W's life; iii) Similarly, the evidence does not justify either the maternal grandparents or the paternal grandparents being summarily excluded from consideration at this stage, whether as carers or as people whom W should have the opportunity of seeing, and with whom he may benefit from developing a relationship; iv) M's relationship with her parents does not appear to be irredeemably broken down. There are some positive relationship indicators; v) The relationship between M and F was casual, but it lasted for some 3 ½ years and not wholly insubstantial. Although M’s parents did not meet the F, M told them of the relationship; vi) There is a lingering concern that if M were to tell her parents (or perhaps a friend) about the birth and adoption, it is possible that F and his family would in turn find out; vii) There is the possibility that the prospective adoptive parents might elect to withdraw from the process, although they have not yet ruled themselves out and are not likely to do so imminently. But that, while an important consideration, dis not in J’s judgement outweigh the considerations pointing the other way; viii) the impact on M, while distressing and unsettling, is unlikely to be disastrous and J would hope and expect that proper support will be offered by the LA to address any issues; ix) Finally, a determination in the LA’s favour would lead to a total severance of W's relationship with his birth families, without any of them (bar M) having any say or being considered beyond the merest superficiality. Should this come to the attention of F and/or wider family at some later date, they would, in J’s view, legitimately complain of having been completely written out of W's welfare decision making.

 

High Court guidance on best interests decisions and declarations for child medical treatment

Cambridge University Hospitals NHS Foundation Trust v Mother of E & Anor [2021] EWHC 126 (Fam)

Background - E is now almost exactly seven and a half. When she was about three and a quarter, she manifested symptoms which were conclusively diagnosed as a form of cancer in of her brain which cannot be cured by surgery alone. In October 2016, the tumour was resected by surgery at Addenbrookes Hospital in Cambridge. After the surgery, chemotherapy was the only option for E, who was then still under the age of three and a half. The doctors at Addenbrookes advised that she should have it, and the mother (“M”) accepted their advice. The doctors did not anticipate, nor, therefore, warn of, any significant side effects from the chemotherapy as such. But, unpredictably, the effect upon E was rapidly catastrophic. Within a few days she fell into a coma, and she remained in intensive care for over a month. She remained very seriously ill for several months, and on more than one occasion was considered to be very close to death. After many months, however, E did recover and was able to return home and, eventually, to pick up again on a normal life.

An MRI scan in November 2020 confirmed that the tumour had indeed recurred, and on 3 December 2020 a further surgical resection at Alder Hey was completed.

The Issue - should E now undergo a course of low-dose radiotherapy or not? All the treating doctors, both at Addenbrookes and at Alder Hey, felt strongly that E should undergo low-dose radiotherapy. They did not regard it as at all finely balanced now that E is seven and a half, and as she had already had two recurrences. M did not agree or give her consent, so the hospital, applied to the High Court for a best interests decision and declaration.

Held - E should undergo low-dose craniospinal radiotherapy. The Judge (“J”) said he had to take a very person-specific decision, considering the overall best interests of E and E alone.

J said that although a 50 per cent prospect of a cure sounds frighteningly low, it is still a very real prospect of a cure and a normal life expectancy if she undergoes the low-dose radiotherapy now. Even if she is not cured, there is, on the evidence, the prospect of adding, perhaps, two additional years to her life, which at her age is an appreciable addition to her overall life span. In J’s view, that prospect clearly outweighed all the predictable disadvantages and side effects of the proposed treatment. J thought it must be worth some weeks or months of upset and distress, sickness, hair loss and lethargy now, to gain the prize of a lasting cure.

J said that he had been very concerned about the very high likelihood of permanent neuro-psychological damage impacting forever E's intelligence and cognitive functioning. But, as one of the experts said, E should still be able to attend mainstream school, obtain and hold down a job, and live an independent life. J said, after due deliberation, it seemed to him acceptable and justifiable in the overall best interests of E to take a course which almost certainly will damage her neuro-psychological functioning, when the inevitable alternative is death. A life with impaired intellectual functioning is preferable to, and better than, no life at all.

The human instinct to survive is in most people strong. It is likely that, if E had a full and adult capacity to consider and weigh all the medical evidence, as well as her own personal circumstances, she would herself grasp the prospect of living a full life which the proposed low-dose radiotherapy offers. J said that he would declare, in the terms of the draft order, that "It is in E's best interests to undergo low-dose craniospinal radiotherapy.".

 

The High Court considers a local authority’s duties to notify the authority of another jurisdiction

The Prospective Adopters v The Mother & Anor (Rev 1) [2021] EWHC 91 (Fam) [2021] EWHC 91 (Fam)

Background - The Applicants (“APS”) applied for an adoption order under s.46 of the Adoption and Children Act 2002 (ACA) in respect of a baby boy (AK). APS made a part 19 application for directions as to the notification of the Romanian Central Authority (“RCA”) at the same time as making the adoption application. APS are litigants in person and as the issue before the court concerned the local authorities (“LA's”) duties.

The mother (“M”) is a Romanian national and travelled to the UK when 8 months pregnant with the express purpose of giving birth here and relinquishing the baby. M spent one night in hospital with AK but has had no contact with him since. AK was initially placed in foster care and then moved to live with APS.

M has declined to give any details of the father (“F”). However, the LA discovered that the M gave his name and date of birth when she was admitted to hospital for the birth. At the prompting of the social worker (“SW”), M has written a letter to AK, which can be given to him when he is older, in which she names F but gives no contact details for him.

M comes from the Roma community in Romania as does F. F made clear that he wanted M to have a termination, but it was too late in the pregnancy to have one done legally. F then broke up with M and wanted nothing to do with M. F is now married with a young child. M has said that to have a baby in these circumstances, in her community, is a disgrace.

Issues - (1) Whether the LA is under a legal obligation to notify the RCA of these proceedings; and (2) Whether any inquiries should be made of the RCA to seek their assistance in identifying the birth father, wider family and conducting any assessments.

Held - The Judge (“J”) decided that the RCA should not be notified.

J must consider all the factors together in a holistic assessment. In J’s view, the factors point strongly in favour of not joining the child and not seeking the assistance of the RCA to find the F and the wider family. F does not have parental responsibility in English law. The evidence strongly suggests that he would not wish to care for the child and that there is little likelihood of M's wider family wishing to do so. M is in genuine fear of her family finding out about the birth which would cause real distress and possibly very serious consequences if they did find out. It might well be that even if the RCA were notified, they would not be able to find F in any event. Balanced against all those factors is the fact that AK has a loving home in the UK, and it is clearly in his best interests for court proceedings not to be delayed. Therefore, on the first reason for notifying the RCA, J considered this to be a clear-cut case where it would not be appropriate to notify and there is no good reason to join the child as a party.

In relation to the second reason for notification (to invite the RCA's view on placement and whether proceedings should be transferred to Romania), J was more concerned about this reason than was the LA. It must be remembered that AK is a Romanian citizen and is not a British citizen. Although there is no duty under the Vienna Convention to notify, that does not mean that the Court can simply ignore the fact that it would be making an order about a foreign national without the relevant authorities of that state being informed. As Baker J made clear in Re JL there remains a discretion to notify where the Vienna Convention does not.

Acland Bryant is a barrister at St Mary's Chambers. He can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..

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