Children case law update: November 2024

Sarah Hutchinson summarises recent Family Division rulings on an application by a father for a boy subject to a care order to be circumcised, and an application by an NHS for permission for NG feeding and restraint in respect of a 12-year old girl with anorexia nervosa.

London Borough of Hackney and A Father (1) and A Mother (2) and G (3) by his CAFCASS Guardian [2024] EWHC 2363 (Fam)

In the High Court of Justice Family Division, before Miss Nageena Khalique KC (sitting as a deputy judge of the High Court)

Factual background

The case concerns a boy (G) aged 16 months who is subject to a care order made in favour of the applicant local authority. G lives with his sibling (S) and the foster carers who they were placed with when he was discharged from hospital after his birth while the adoption process progresses. Of relevance in this case is G’s background which is mixed Lebanese/white British parentage.

An application dated 11 June 2024 brought under the inherent jurisdiction by G’s father sought the court’s authorisation for G to be circumcised. At this stage, the father was the applicant. At a hearing on 25 June 2024, all parties acknowledged that there was a disputed issue of non-therapeutic circumcision in relation to a child in care and therefore the local authority should bring the matter to court as per the approach in Re P (Circumcision: Child in Care [2021] EWHC 1616 (Fam) [2022] 4 WLR 53 [27].

A Consultant Community Paediatrician reviewed G’s adoption medical records and concluded that there was co clinical or therapeutic indication for circumcision nor any health reasons why surgery would be more of a risk to G that the background risk to any child. A summary of the medical evidence is at paragraphs 13 to 17.

The father’s initial position focussed on the importance of G’s Muslim heritage and Islamic traditions. This was later revised relying solely on the argument that G should be circumcised as part of his cultural heritage, asserting that circumcision has symbolic significance, relevant to G’s Lebanese identity. The mother supported the application however it was noted that the mother initially stated that she wanted G to be circumcised on health grounds and then change this to religious grounds. Both the local authority and guardian opposed the application and contended that it was for G to make any decision about circumcision later in his life, if he so chooses. An overview of the evidence and position of the parties is at paragraphs 18 to 41.

Applicable law

The application for G to be circumcised is an issue to which the welfare checklist set out at s1(3) of the Children’s Act 1989 applies:

1. the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
2. his physical, emotional and educational needs;
3. the likely effect on him of any change in his circumstances;
4. his age, sex, background and any characteristics of his which the court considers relevant;
5. any harm which he has suffered or is at risk of suffering;
6. how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
7. the range of powers available to the court under this Act in the proceedings in question.

Under s33(6) of the Children’s Act 1989 the local authority is required, for as long as it has a care order, not to take any step to change a child’s religious upbringing. It provides that:

“…While a care order is in force with respect to a child, the local authority designated by the order shall not—
(a) cause the child to be brought up in any religious persuasion other than that in which he would have been brought up if the order had not been made;…”

Additionally, the guiding principles in Re P (Circumcision: Child in Care [2021] EWHC 1616 (Fam) [2022] 4 WLR 53 [27] are applicable in this case:

General

1. While it can never be reasonable parenting to inflict any form of FGM on a child, the position is different with male circumcision; “Society and the law, including family law, are prepared to tolerate non-therapeutic male circumcision performed for religious or even for purely cultural or conventional reasons, while no longer being willing to tolerate FGM in any of its forms”;

Welfare

2. The welfare of the child, both in the immediate and long-term, is the paramount consideration in reaching a decision about circumcision for a male child (the law in its current form is in section 1(1) Children Act 1989); this is uncontroversial in the instant case, and has been the starting point of all previous decisions;
3. The welfare checklist (section 1(3) CA 1989) is engaged;
4. Religious upbringing of a child in care may be a matter of great importance; the significance of the issue will vary from case to case depending on the strength of the religious beliefs and observance of the child’s parents; on any account, this factor will need to be incorporated within (and not in place of) the wider welfare review;

Local Authority duty

5. A local authority is under a duty to ensure that a child in their care is not brought up in any different religious persuasion from that followed by his parents prior to the care order. If the local authority breaches that duty, it will be exceeding the limitation imposed on its exercise of parental responsibility by section 33(6)(a) CA 1989;

Medical issues

6. That the circumcision procedure is irreversible is a matter of significance when looking at the short and longer term implications for the child;
7. The court must review the medical risks and benefits of such a procedure, particularly where it is proposed for a non-therapeutic purpose;

Views of parents and others

8. The religious views and wishes of both parents carry significant weight (they may of course as between themselves have different views/wishes); the court should pay these views ‘serious heed’. The court will be slow to conclude that a parent faithfully striving to follow the teachings of their religion is acting unreasonably;
9. The court is not bound to give effect to the wishes of the parents about religious upbringing “when satisfied that the child’s welfare requires otherwise, and in giving effect to them the court has power to do so in such a manner as it may consider to be best in the child’s interests”;
10. The views of the primary carers of the child (if not the parents) also carry significant weight; it is a strong thing to impose a medically unnecessary surgical intervention on a residential carer/parent who is opposed to it;
11. The particular environment in which the child is going to be raised is an important factor; if the environment is one in which circumcision is not a part of family life, or in which it is not in conformity with the religion practised by his primary carer, this would be a relevant factor;

Conclusion / Judgment:

The court balanced the various considerations.

In relation to religious grounds, whilst recognising G’s parentage, the court noted that the mother is not Muslim, and the father had conceded that he is not a practising Muslim. Furthermore, the father had stated that he does not wish for his children to be brought up in any particular faith. As a result, the court found that the mother’s reasons for supporting the father’s application on religious grounds were unconvincing. Therefore, it was considered that the religious grounds fell away.

Although not an argument that was pursued by the father, the court considered whether there would be any potential breach of Article 9 of the ECHR in any making of an order for G not to be circumcised.

The court noted that there was undoubtedly a need for G to be educated about the Lebanese side of his heritage, but was satisfied that the local authority was committed to ensuring that G will supported in understanding his cultural heritage.

The judgment recognised that circumcision is a surgical intervention which has no medical basis in G’s case. The court considered that for circumcision to be ordered, there would need to be clear benefits to G which would demonstrate that it was in his best interests. The court ultimately held that it was in G’s best interest to defer the decision until G has the maturity and insight to appreciate the consequences and long-term implications of the decision.

The court therefore concluded that it should not make an order for G to be circumcised.

An NHS Trust and G (By her Children’s Guardian [2024] EWHC 2207 (Fam)

In the High Court of Justice Family Division before Mr Justice Francis

Factual background

This case relates to a 12-year-old girl (G) who has a diagnosis of anorexia nervosa and depression. In 2022, G started to restrict her daily intake of food which ultimately resulted in ceasing all consumption of food and drinks. The background and facts of the case are at paragraphs 4 to 8. In summary, G was admitted to a local hospital on 20 June 2023 and subsequently transferred to an intensive intervention unit in a specialist Trust hospital in August 2023. Following her admission to the unit, G refused food and liquid orally and attempted to refuse food through her NG tube. This resulted in “unplanned clinic holds” where four or five members of staff were required to restrain G when being fed with an NG tube.

The trust which operates the unit is not registered with the CQC to exercise powers available under The Mental Health Act 1983. Accordingly, sectioning G under the Mental Health Act was not an option.

In August 2023, a locum consultant Child and Adolescent Psychiatrist assessed G as not being “Gillick competent” in respect of NG feeding, and that the restraint necessary on some occasions to ensure NG feeding. The treatment and restraint were consented to by G’s mother and father.

In September 2023, the Trust made an application to permit NG feeding and restraint in respect of G. Details of the application and the Guardian’s analysis are at paragraphs 9 to 17. The parties reached an agreement, and a consent order was approved by the court. However, the court was invited by those representing for the Guardian to produce a reserved Judgment in order to resolve what was referred to as:

“an apparent tension between, on the one hand, the common law authorities around consent to treatment and restrictions for children and, on the other, the Code.”

Applicable law

The statutory guidance which is issued pursuant to s118 of the Mental Health Act 1983 “the Code” provides as follows:

“(1) the Secretary of State shall prepare, and from time to time revise, a code of practice-
(a) for the guidance of registered medical practitioners, approved clinicians, managers and staff of hospitals, independent hospitals and care homes and approved mental health professionals in relation to the admission of patients to hospitals and registered establishments under this Act; and

(b) for the guidance of registered medical practitioners and members of other professions in relation to the medical treatment of patients suffering from mental disorder”.

The matter of parental consent is covered at paragraphs 19.39 to 19.41 of the same Code.

“In some circumstances, it will be possible for children lacking competence and young people lacking capacity to be admitted to hospital and/or treated on the basis of parental consent (see paragraphs 19.52-19.70). However, before relying on parental consent, practitioners must be satisfied that it is appropriate to do so. This is important because court decisions relating to parental consent have emphasised that there are limits to both the types of decisions that can be made by those with parental responsibility on behalf of their child, and the circumstances in which these decisions can be made.45 For example, when making decisions on behalf of their child, parents must act in their child’s best interests and those with parental responsibility cannot authorise the deprivation of liberty (discussed below) of their child. This guidance uses the term ‘the zone of parental control’ to highlight the need to establish whether the particular decision can be authorised by parental consent or not. Those cases in which parental consent provides sufficient authority for the proposed intervention to go ahead are described as falling within the zone of parental control.”

In the decision of AB v CD [2021] EDWHC Civ 741 (fam) [116] Lieven Jstated :

“The analysis of the caselaw shows that the cases supporting a special category of treatment of children which require Court approval are very limited. In fact, the only case where the Court has found a legal requirement to come to Court in respect of treatment of a child, where both parents consent, is Heilbron J Re D, the case of a “non-therapeutic” sterilisation of an 11 year old. In all other contexts, including where the parental decision will lead to the child’s life ending, the Court has imposed no such requirement. There are a range of cases where there does have to be Court approval, but this is where there is a clinical disagreement; possible alternative treatment of the medical condition in issue; or the decision is, in the opinion of clinicians, finely balanced. These are fact specific instances rather than examples of any special category of treatment where the Court’s role is required simply because of the nature of the treatment.”

On the issue of restraint that can lead to a deprivation of liberty, the case of Lincolnshire County Council v TGA [2022] EWHC 2323 (fam) provides a survey of the authorities. The case of Re D (Deprivation of Liberty) [2015] EWHC (fam) considers the “zone of parental responsibility” and whether this decision has been overtaken by the Supreme Court decision in Re D (A Child) [2019] UKSC 42. In which Lieven J said:

“The conclusion I have reached is that a parent can consent to a deprivation of liberty within Storck component (b) for a child under 16, who lacks Gillick competence, where there is no dispute that such a deprivation is in the child’s best interests.” [47]

And;

“if a child under 16, such as K, plainly does not have Gillick competence to make the decision as to his liberty, and his parents (or in this case his testamentary guardians) decide to deprive him of his liberty, and no third party (such as the local authority or an NHS body) consider such deprivation to be contrary to his best interest, then the parents can lawfully deprive him of his liberty”. [58]

Conclusion / judgment

The Judge considered the fact that the Code came into force in 2015 and agreed that practitioners must be guided by the developing caselaw.

The court considered that, even if contrary to the non-Gillick competent child’s wishes, NG feeding does not fall into a special category that requires court authorisation. Where there is consensus of the clinical team and parents as to the best interests of the child to preserve life, the parents are able to provide their consent. The court considered that where a child lacks Gillick competence to make their own decision, and there is agreement between the clinical team and parents as to the best interests of the child, a parent can consent to both medical treatment and any consequent deprivation of liberty. This enables clinicians to lawfully carry out the treatment plan. The court considered this to be the case even if the treatment is repeatedly invasive and amounts to a deprivation of liberty.

The Judge went further and stated that it is the duty of the State to intervene where a decision is made that is contrary to the best interests of the child and might cause the child to suffer considerable harm. However, the court concluded that in this case, where the treating medical team and the parents agree, the state’s intervention is unnecessary. This was caveated in relation to cases where a local authority or a Children’s Guardian took the view that both the hospital and the parents had “got it seriously wrong” but the court noted that such cases would be extremely rare.

The Judge therefore determined that a declaration that it is G’s best interests to receive the treatment and, if necessary, to be restrained in order to receive the NG treatment, was unnecessary.

Sarah Hutchinson is a pupil barrister at Spire Barristers.