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Care proceedings and medical treatment

Health iStock 000005083391XSmall 146x219The Court of Protection team at 39 Essex Chambers examines recent comments by the President of the Family Division on care proceedings and the medical treatment of children.

In AB (A Child) [2018] EWFC 3, Sir James Munby P made the following observations about when local authorities should bring care proceedings for purposes of seeking to ensure that a child receives a specific medical treatment:

i) Cases such as this (Re Jake (A Child) [2015] EWHC 2442 (Fam), [2016] 2 FCR 118, is another example) raise very complex issues, as yet little explored in the authorities, as to whether the appropriate process is by way of application for a care order or application under the inherent jurisdiction. Local authorities need to think long and hard before embarking upon care proceedings against otherwise unimpeachable parents who may justifiably resent recourse to what they are likely to see as an unnecessarily adversarial and punitive remedy.

ii) A local authority does not need any specific locus standi to be able to invoke the inherent jurisdiction: see In re D (A Minor) (Wardship: Sterilisation) [1976] Fam 185. Section 100 does not prevent a local authority invoking the inherent jurisdiction in relation to medical treatment issues: see Re C (Children: Power to Choose Forenames) [2016] EWCA Civ 374, [2017] 1 FLR 487, para 97.

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iii) Whatever its strict rights may be, a local authority will usually be ill-advised to rely upon its parental responsibility under section 33(3)(a) of the 1989 Act as entitling it to authorise medical treatment opposed by parents who also have parental responsibility: see Barnet London Borough Council v AL and others [2017] EWHC 125 (Fam), [2017] 4 WLR 53, para 32, and the discussion in Re C (Children: Power to Choose Forenames) [2016] EWCA Civ 374, [2017] 1 FLR 487, paras 92-95. For a local authority to embark upon care proceedings in such a case merely to clothe it with parental responsibility is likely to be problematic and may well turn out to be ineffective.

iv) If, on the other hand, in a case such as this, a local authority is thinking of embarking upon care proceedings with a view, as here, to removing the child from the parents, it needs to think very carefully not merely about the practicalities of finding an appropriate placement, whether institutional or in a specialised foster placement, but also about the practicalities of ensuring that the parents have proper contact with their child during what may be its last few months or weeks of life. And by proper contact I do not mean contact two or three times a week for a couple of hours a time if the parents reasonably want more, even much more. As I said in Re Jake (A Child) [2015] EWHC 2442 (Fam), [2016] 2 FCR 118, para 29, "In terms of simple humanity, parents must have as much time as they want, not least because it may be a distressingly short time, with their much loved baby." And it is simply unbearable to contemplate the reaction of parents unable to be with their child at the moment of death because of geography or, even worse, bureaucracy.

Sir James therefore made it clear that it is not appropriate then for local authorities to use its parental authority obtained pursuant to section 33 of the Children Act 1989 to consent to a child’s medical treatment in the face of parental objection. Such cases should be brought before the Court for orders pursuant to the Court’s inherent jurisdiction. The President did not address the issue raised by Mostyn J in the case of Re JM (A Child) [2015] EWHC 2832 (Fam) in which the latter had held that it was appropriate for orders authorising medical treatment to be granted by the Court by way of a single issue order pursuant to s.8 Children Act 1989. This is perhaps unsurprising given that none of the recent cases have been framed as s.8 orders, but it seems to us that the President’s decision leaves this option open to local authorities.

This article was written by the Court of Protection team at 39 Essex Chambers.

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