Think long and hard before care proceedings in medical treatment rows: Munby

Local authorities need to think long and hard before embarking upon care proceedings against “otherwise unimpeachable” parents embroiled in disputes about the medical treatment and support of a child, the President of the Family Division has said.

In AB (A Child) [2018] EWFC 3 Sir James Munby said the parents “may justifiably resent recourse to what they are likely to see as an unnecessarily adversarial and punitive remedy”.

The case concerned Mr and Mrs N and their children, a six-year-old girl and a little boy (AB) who is four.

AB has a complex neuro-metabolic, neuro-developmental, neuro-degenerative disorder which is probably mitochondrial in origin, the President said. "It is a life-limiting condition. The symptoms and clinical presentation do not have a named diagnosis. AB is profoundly neurologically disabled. His care routine is complex and intensive."

Sir James said: “Mr and Mrs N are devoted to both their children and are determined to do the very best for them. Because – and I emphasise only because – of their children's difficulties, Mr and Mrs N have unhappily become embroiled in litigation.”

In May 2016 Mrs Justice Parker had made – on the application of the relevant NHS Trust – a raft of declarations in the exercise of the inherent jurisdiction of the High Court to the effect that the Trust would be acting lawfully and in AB's best interests by withholding certain identified medical treatment, including all forms of resuscitation, in the event that his condition deteriorated to the extent that such treatments would otherwise be necessitated.

The following month (21 June) the Court of Appeal refused the parents’ application for permission to appeal Parker J’s decision.

On 24 June 2016 the local authority made a without notice application to Mrs Justice Parker for an order preventing the parents removing AB from the hospital. The judge made the order same day.

The judge discharged the order three days later after agreement was reached between the council, the trust, AB’s solicitor and his mother that it was in the boy’s interests to be able to return home immediately or periods of up to 48 hours, and in the long term, provided that an appropriate package of care could be provided to him. The boy was discharged home on 2 September.

On 3 February 2017 the local authority issued care proceedings in relation to AB, having previously issued care proceedings there in relation to his sister.

The core allegations were that:

• AB's parents "have been reported [to] be uncooperative, rude and aggressive and intimidating of medical and nursing staff."
• "Due to the lack of co-operation from the parents, and repeated allegations about the carers, it has been impossible to implement a care package of support for [AB]. [He] will suffer significant harm over time if the care package cannot be provided to him."
• "The parents' behaviour has led to [AB] not receiving the assessed level of care provision to meet his needs even when care staff were exchanged for nursing staff at the parents' request. The appropriate level of care cannot be given whilst [he] is in the home environment."

On 18 April 2017 His Honour Judge Tolson QC handed down a judgment giving his reasons for making a care order in relation to AB while making no order in relation to his sister. However, he gave the parents permission to appeal, staying the care order.

On 9 May, the appeal was allowed, the care order was set aside and the case remitted “for rehearing on all issues” before the President or a High Court judge nominated by him. Lord Justice Patten said that the case raised jurisdictional issues what were almost unique, adding that it was of "enormous importance".

In September 2017 the QC for the local authority, Alex Verdan, emailed Sir James to say that the current support package was working satisfactorily and that the parents’ behaviour had improved over the previous four months.

The QC said that in light of the medical evidence in the case “and after careful consideration of the complex and unusual issues in the case”, the local authority no longer sought to prove the ‘threshold criteria’ and therefore no longer to remove the child from his parents’ care. The proposal instead was that AB would remain at home with his sister and subject to a child protection and an ongoing support package.

The local authority therefore sought permission to withdraw the s.31 Children Act 1989 application.

On 18 September the President made an order that stated amongst other things that the parties acknowledged that factual disputes remained between them but they did not invite the court to determine those disputes on the basis that this was no longer necessary or proportionate, and that no adverse findings had been made in respect of the parenting given to AB by his parents, their care of him and their adherence to the Symptom Management Plan.

Sir James granted permission to withdraw the proceedings on the basis that the court was satisfied, on the evidence filed, “that:

a. The care being given to [AB] by his parents, with the supporting care package, is meeting his needs;

b. The Symptom Management Plan is being followed, including the administering of medication by [AB]'s nursing team;

c. It is in [AB]'s best interests for the application to be withdrawn and for no order to be made.”

In his judgment, which was published this week, Sir James said he had not had occasion to consider the important jurisdictional and other questions identified by the Court of Appeal. These must await another day, he said.

However, the President said he thought he could properly make four observations:

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.

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.

The judge added as a postscript that when he sent the judgment to the parties in draft, he had asked for up-to-date news of AB. “His parents' response, which obviously delighted me, was that he "remains stable and largely comfortable at home" and "Whilst he continues to have dystonic episodes they are not as frequent or as severe as in the past." They also sent me, for which I am grateful, a heart-warming photograph of the family by the Christmas tree.”