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Tag Archives: section 33 children act 1989

A judicial T-shirt cannon loaded with “whoop-ass” t-shirts

Posted on April 19, 2021 by suesspiciousminds

I occasionally make reference to judgments where the Judge opens a can of whoop-ass on one party, usually the Local Authority. This one goes so far beyond a can, and even beyond a supermarket trolley filled with cans of whoop-ass that only the title I’ve selected will suffice to show just how much whoop-ass was being thrown about. And rightly so.

IF you are from Herefordshire CC, you may want to skip this particular post. Or at least get a very strong coffee before reading.

I’ll open with the conclusion:-

  1. My strongest criticism must be directed at this local authority. In the whole of my professional life I have rarely encountered such egregious and long-standing failures by a local authority. The worst of it is, I cannot after the closest possible enquiry, understand why or what motivated the local authority to fail these children, this mother and the interveners as appallingly and for as extended a period of time. The whole history of the role of this local authority in the lives of these children is highly inexplicable. The only matter which is clear to me is that it did not have the welfare best interests of the children at the heart of its decision-making, such as it was.
  2. This must call into question whether this local authority’s children’s services department is fit for purpose. That is a question which is not for me to answer. I can say that they had failed these children in an extraordinary manner over a prolonged period of time.
  1. The local authority’s actions, omissions and failures in this case have been spread over a period in excess of eight years. Mr Baird readily accepted and described the conduct of the children’s services department in the lives of these children as appalling. He was plainly right to do so. He offered to write a personal letter of apology to Child A, Child B, Child D, the mother and the interveners and will ensure this course has been taken.
  2. Prior to receiving final closing submissions, I received a letter of apology to the court in respect of the local authority’s conduct in the light of these children from Herefordshire Council. The letter was signed by the Chief Executive of the council and by two of the deputy Chief Executives.
  3. I was told by Ms Meyer QC that the council had agreed to undertake an internal review of the council’s children services department and would commission an independent external review of the same.
  4. I gave permission for a copy of this judgement, once handed down, to be sent to named officers in Herefordshire Council in order to inform the reviews. Further, I was told that once an anonymised published version of this judgment was available, the Council proposed to call a full Council meeting at which the contents of this judgment would be discussed, and the way forward would be considered.
  5. I have directed that a copy of this judgment should be sent by the local authority to the following:

(i) The Secretary of State for Education

(ii) the Chief Social Worker

(iii) the Children’s Commmisioner; and

(iv) the Chief Inspector of Ofsted

There’s obviously a huge amount in this judgment and my summary of it is in no way a substitute for reading it. I’ll give a brief overview and then pick out some of the most serious complaints against the Local Authority

YY (Children: Conduct of the Local Authority) [2021] EWHC 749 (Fam) (26 March 2021) (bailii.org)

(You know it is going to be worth a read when the case name has that description)

Four children were made the subject of Care Orders to Herefordshire in 2014 and placed in foster care. At the final hearing, allegations were made that the children had been the victims of sexual abuse – the Court found threshold proved but in terms of sexual abuse the findings were exposure to sexual knowledge rather than direct abuse.

The case came back to Court in 2019 for three things- mother’s application for contact, an application to change the children’s surname and an application by the LA to discharge the care orders with an invitation to make Special Guardianship Orders in favour of the foster carers.

During the enquiries about these applications, it emerged that the children had continued to make allegations of sexual harm and abuse and that the foster carers had not been properly appraised of the decision of the Court at the fact finding.

Tragically, in the interim period, one of the children became extremely unwell and subsequently died.

This is the first of the big complaints. When the child became ill and was on life-support, the medical advice was to have the life-support turned off. The parents were not consulted. The Local Authority, on legal advice, decided that they could use their powers under section 33 of the Children Act 1989 to consent to the life-support being turned off.


  1. 116. At 10:40am Mr Baird sent a draft response to Dr Zafurallah to the local authority’s legal department for approval. At 10:43am Tim Marks one of the then local authority solicitors replied to Mr Baird as follows:

“discussed this with Liz and we agreed birth parents need to be informed about the medical advice. We need to consult with them but my legal advice is our duty as corporate parents is to accept the medical advice and avoid unnecessary suffering. If this is contrary to the parents wishes it is unfortunate but we need to take that course”

As I shall set out shortly this legal advice, as Mr Baird now accepts, was wrong.

It is hard to imagine a decision that the Local Authority can ever take when dealing with a child that is more serious than consenting to a course of action that ends the child’s life. It is astonishing to me that anyone at a Local Authority could contemplate doing so under s33 rather than placing the case before a Court. It is unclear whether they even considered the article 2 implications.

133. In Child C’s case, therefore, the profound life and death decision to consent to the withdrawal of life support ought to have been the subject of an application to the High Court either by BCH or by the local authority. It was wrong and an inappropriate use of its powers under s.33 of the 1989 Act for the local authority to have exercised its powers to consent to the withdrawal of Child C’s life support.

Both the mother and the father told Ms Leader on the morning of 6th June 2019 that they agreed with the decisions of the treating clinicians. The local authority has now accepted that given:

i) neither parent had had any contact with any of the children, including Child C, since late 2012;

ii) neither had been involved in any meeting or discussion with treating clinicians at BCH; and

iii) the circumstances in which they were told of the parlous state of their daughter on early morning of 6th June;

I could not accept or find that either parent had given informed consent to the withdrawal of Child C’s life support.

Next topic for me is disclosure – this was a case where there were a wealth of documents and material to be considered and for the Local Authority to consider very rigorously whether they should disclose into the proceedings – the Local Authority has duties to disclose material which not only supports its case but may weaken or undermine its case or potentially strengthen the case of any other party.

The Court notes that due to the delays in providing proper disclosure and it coming in piecemeal and thus one set of documents disclosed revealing the existence of others that then had to be asked for, the oral evidence in this 20 day hearing could not begin until day 9.

It seems that the important task of handling discovery was left to social workers rather than being undertaken by lawyers.

The circumstances of the case reached a point in December 2016 where the Designated Family Judge who had been hearing the case felt compelled to include a recital in extremely strong terms

185. In his order of 2nd December 2016 HHJ Plunkett, understandably and wholly reasonably given the history of this case, included the following recital in his order:
“[the court] is concerned about the surprising degree of resistance to accept the clear judgment from the fact finding hearing by the Foster Carers and raises the option to move the children to Foster Carers who understand and support the reality as letting the children grow up not knowing the truth is likely to cause them emotional harm”
What did the local authority do in response to this very serious expression of concern by a judge that the children were suffering emotional harm in their foster placement and that consideration should be given to moving them to an alternative foster placement? Very shockingly the answer is nothing.
Ms Cox confirmed this in her evidence.
Worse still, on day 14 of this fact-finding hearing a note was disclosed of a meeting held on 13th December 2016 between Ms Cox and Mr Scott, a then assistant director of children’s services. At point 12 of 12, I repeat point 12 of 12, the following is recorded:
“YY case. In court. Challenge from Judge P re contact for relatives, ‘brainwashing’ by social workers/foster carers. Cafcass to visit children soon. Children plan in overview which we support. GC to discuss with AC on her return.”
HHJ Plunkett is not just a senior and hugely experienced family judge, he is the Designated Family Judge for Hereford and Worcester. The lack of any response to, or action taken in respect of, the concerns expressed is truly woeful. The utterly contemptuous response of an assistant director of children’s services of this local authority is absolutely appalling and shocking. It is completely inexcusable. However, this demonstrates the skewed and wholly inappropriate response of this local authority to the desperate needs of the children and reveals a mindset which has ultimately caused them considerable possibly irreparable emotional and psychological harm. I sincerely hope it has not.

The case had had the involvement with an expert, Dr Asen. The LA mounted an attack on him in a position statement. Keehan J was not, it would be fair to say, taken with this:-

182. Dr Asen had from time to time, between 2013 and 2016, been instructed to advise on the way forward in this case. He is one of the most experienced and highly regarded child psychiatrists in the field of high conflict children’s cases in the country. In 2014 a social work professional had recorded on the social work files that Dr Asen had expressed a view that the judgment and order of HHJ Rundell in the fact-finding hearing of 2013 was wrong and it should have been appealed. If this had been Dr Asen’s view he would have expressed it in one of his reports. He did not. I do not understand the motive for this false recording, but it indicates that the same professional in the local authority was not supportive of Dr Asen’s involvement in this case or of the positive change he was seeking to achieve.
For the purposes of the hearing before HHJ Plunkett on 2nd December 2016 when he was hearing the maternal grandmother’s application for contact, the local authority filed and served a position statement which contained the following:
“The local authority’s position at the last hearing was that contact should not progress to direct contact at this stage and challenged Dr Asen’s assessment. Then local authority believes that there is significant use of emotive language in Dr Asen’s report, which unhelpful and can be taken out of context; this raises concerned over the impartiality of the report and the conclusions he has come to. The local authority believed that there should be some work undertaken to progress matters, but that this must be done at the children’s pace and taking into consideration their very strong wishes and feelings.”
“The local authority believes that it can progress contact via the LAC review process. The local authority has significant concerns around the impact of direct and indirect contact and the children at this time, which are set out in detail within the local authority evidence. The parents are against any contact taking place between the children and their extended family; this is supported by the local authority, who share parental responsibility at this time.”
“The local authority wishes to progress life story work, at a pace right for the children, and in line with their emotional needs. The local authority is committed to undertaking this work and sees this as a part of the social workers role, and not of a child psychiatrist. The local authority is committed to promoting contact between the children and the extended family, but this must be in line with their emotional needs.”

Two important points arise:
i) it is disgraceful that this local authority chose to impugn the professional integrity of a highly respected child psychiatrist on the flimsiest of evidence. There was no evidential basis upon which any reasonable person could or should have questioned Dr Asen’s impartiality; and

ii) life story work may well be within the ambit of the social worker rather than a child psychiatrist, but after a few months in early 2017 the local authority did no life story work with the children.

The Court, understandably, spent a lot of time dealing with the assessment of the foster carers which the Local Authority filed as a Special Guardianship assessment. The assessment was written by Kathryn Straughan. Her manager was Alison Foreshaw. Miss Cox is the Head of Service. Mr Baird is the Director of Children’s Services.

The body of the report had as was clear to any reader, an overall negative view of the foster carers becoming Special Guardians, yet the recommendation was that they should be Special Guardians.

Had pressure been applied?

145. Kathryn Straughan had been the interveners’ social worker but was reassigned in June 2019. After Child C’s death she was asked to update her May 2019 special guardianship assessment report by her team manager, Alison Forshaw. She had instructed her to undertake the update as a paper-based exercise and that she was not to visit the interveners.
Ms Straughan believed there were some positives about the children’s placement with the interveners: the children were settled and felt part of the family, the children, however, struggled with their sense of identity, with their views about their parents and wider family and with the issue of contact. These concerns and the concerns about the attitude and approach of the interveners towards the birth family escalated after Child C’s death. Ms Straughan did not consider that the interveners genuinely believed that contact with the parents and their wider family was in the best interests of the children.
She told me that she had real reservations about SGOs being made in favour of the interveners. She did not consider this order to be in the best interests of the children.
As foreshadowed in a supervision meeting with Ms Forshaw on 3rd October 2019, on 10th October Ms Straughan sent her updated assessment report to Ms Forshaw by email. The body of the report was largely negative about the interveners. She concluded with a recommendation that the children should remain the subject of care orders, not SGOs. She asked Ms Forshaw whether she could leave the alternative to the court of making SGOs on the basis of a comprehensive and detailed special guardianship support plan.
On 11th October 2019, Ms Forshaw emailed Ms Straughan in response and said she had to ‘make a recommendation’. Ms Straughan then resigned. Consequently, Ms Straughan, without materially changing the body of her first updating report, changed the recommendation of the report to one of supporting the making of SGOs. This was sent to Ms Forshaw on 28th October 2019.
She told me she had the clear impression that Ms Forshaw and Ms Cox supported the making of SGOs in favour of the interveners. She felt she had been directed to recommend SGOs to be the right solution and she had changed her recommendation so that it was aligned with the ‘local authority’s view’.
I note that when Ms Forshaw emailed the updated report on 23rd October to Ms Cox, she had replied that she was pleased that Ms Straughan had made a recommendation.
I further note that Ms Straughan told me that this was the first and only time she had been asked to prepare a paper-based special guardianship assessment report or an updated report.

(I note in passing that this was pre-Covid, so there were no public health reasons for not doing the assessment face to face)

153. Ms Forshaw stated that concerns about the children’s placement with the interveners were magnified after June 2019. In response to the question that these concerns were incompatible with an SGO she replied, ‘…it feels like that now!’ I do not understand why ‘it did not feel like that’ in October 2019.
She said she could not recall instructing Ms Straughan to confine her updating assessment report to a paper-based exercise. She continued that she had no view on what the ultimate recommendation should be and that she had not put pressure on Ms Straughan to make a recommendation in favour of SGOs. When pressed on this issue by Mr Goodwin QC, leading counsel for the mother, Ms Forshaw accepted that in her first updating report Ms Straughan had made a clear recommendation, namely that the children should remain the subject of care orders. So, Mr Goodwin QC asked why in her email of 11th October 2019 she had asked Ms Straughan to make a recommendation? The best Ms Forshaw could do was to say that now her request did not make sense, but she added she had not led Ms Straughan to make a recommendation in favour of the making of SGOs.
Ms Forshaw told me that she felt the first version of the updating report had been unfair to the children and the interveners. I struggled with understanding this answer because the only substantive change between the two versions was that the later supported the making of SGOs. When asked if she considered the second version fairer only because it supported the making of SGOs, Ms Forshaw could not give a satisfactory answer.
When it was suggested that save for the first updating report having been emailed to Ms Cox, Ms Forshaw had sought to suppress the first version, Ms Forshaw said she thought both the first and the second updated reports had been sent to the legal department. Only the second version was filed at court and served on the parties. I have not seen any evidence of the first version having been sent to the legal department. Indeed, the first the court and the other parties knew of the first version is when Ms Straughan’s statement of February 2021 was filed and served by the local authority.
When Ms Forshaw was asked if she had asked Ms Straughan how her visits to the interveners were progressing, she said she did not know if she had done so. When asked if she had raised with Ms Straughan why there was not a single reference to any visits to the interveners in either of the first or second versions of the report, she claimed she had. Unfortunately, she had not recorded a single one of these discussions.
Ms Forshaw agreed that on one view the first version was a really poor assessment report. When asked why then had she signed off the second version when it was not materially different to the first one save for its recommendation, she simply said she had been under pressure to file the report with the court.
Ms Forshaw was recalled to give evidence after Mr Baird had given evidence. She was asked again whether she had asked Ms Straughan about her visits to the interveners; she said she could not remember. When asked if she had asked about the interveners’ reactions to her visits, she first replied no and then said she could not remember.
She said she did not think that Ms Straughan had changed her recommendation to appease her or Ms Cox. She was asked why she had signed off the second version when the body of the report did not support the recommendation. Once again, the best Ms Forshaw could do was to reply that the report just had to go to the court.
Towards the end of her evidence Ms Forshaw was pressed again about whether she has spoken with Ms Straughan about her visits to the interveners. This time she said that maybe she just did not ask her.
Miss Cox could not recollect (an answer frequently used by this witness) whether she had seen the first version of the updating assessment report. She could not recollect whether Ms Forshaw had told her that this first updated report did not support the making of SGOs. She said she had not read the second version of report save for reading the recommendation. Having now read this report in full she did not invite the court to rely upon this report in support of making SGOs in favour of the interveners.
Ms Cox confirmed that prior to early 2017 no life story work had been undertaken in the preceding five years with any of the children. She said that after a few months the work of Janet Watkins, who undertook the work with the children, was paused to give the children a break. It never restarted.
No therapy was ever undertaken with the children. Ms Cox was asked what oversight she had given to this case. She replied that the case had fallen off her radar because of the breadth of her workload, although she conceded this was no excuse. I do not understand how this high profile and complex case which had caused serial concerns for many professionals working with the children and with the interveners could ‘fall off the radar’ of the Head of Service.
She conceded that the children, the mother and the interveners had been badly served by this local authority. She agreed that accordingly the children had suffered for which she had real regret.
Like Ms Forshaw, Ms Cox was recalled after Mr Baird had given evidence. She continued to assert that as the Head of Service, she had not needed to read either the first or second versions of the updated assessment reports because they had been signed off by the team manager. When Mr Baird’s dismay at this state of affairs was put to Ms Cox, she asserted that the director of children’s services did not know the usual practice adopted in Herefordshire.
When asked whether she should have read the entirety of both versions of the updated report she said that she wished she had. Ms Cox accepted that the ‘safety net’ oversight (i.e. the quality assurance check), which Ms Forshaw and herself should have provided, failed in this case.
In light of the observations of HHJ Plunkett recorded in the order of 2nd December 2016, Ms Cox was asked what consideration had been given to moving the children to an alternative foster placement. She gave the startling and deeply concerning one-word answer, ‘none’.

This is already painful reading, but it gets worse

177.If Ms Forshaw had not instructed Ms Straughan to undertake a paper-based updated assessment report, I cannot begin to understand why she did not ask Ms Straughan about how her sessions with the interveners were progressing. I cannot accept that Ms Forshaw had simply forgotten any of these alleged conversations.

Ms Forshaw’s evidence about why she had sent an email to Ms Straughan on 11th October 2019 asking her to make a recommendation when, as she accepted, Ms Straughan had made a very clear and strong recommendation in her first version of the updated report, was most unsatisfactory. Her evidence leads me to only one conclusion, namely that she was directing Ms Straughan to produce a report recommending the making of SGOs.

I am fortified in coming to that conclusion by the fact that despite knowing the substance of the body of the second version of the updating report which did not support the recommendation made, she submitted the report to the legal department for filing at the court. She did not raise this disjoint with Ms Straughan because she had the recommendation she wanted.

Likewise, the only credible reason for Ms Cox limiting her reading of the second version of the updating report to the recommendation is because she had got the answer she wanted, namely a recommendation in favour of the making of a SGO. Hence her subsequent email to Ms Forshaw that she was ‘pleased’ that Ms Straughan had been able to make a clear recommendation.

207. My findings of fact in relation to this issue are set out in paragraphs 177-180 above. In summary I found that:
i) Ms Straughan was instructed by Ms Forshaw to undertake a paper only exercise in order to update the special guardianship assessment report of May 2019;

ii) she was instructed by Ms Forshaw not to visit or contact the interveners and/or the children for the purposes of completing her updated report;

iii) Ms Straughan came under pressure from Ms Forshaw and Ms Cox to produce an update which recommended the making of a SGO in respect of the children in favour of the interveners;

iv) I do not find she was instructed to make such a recommendation, but she knew both of them supported the making of a SGO in favour of the interveners; and

v) Ms Forshaw signed off the 22nd October 2019 report and arranged for it to be filed at court and served on the parties when she knew that the observations, opinions and conclusions set out in section C of the report did not support or provide a rational basis for the recommendation in favour of the making of a SGO. Indeed, those matters of substance set out in section C only supported the dramatically opposite recommendation that a SGO should not be made.

The findings about the failure of the Local Authority to support the children and their foster placement and to properly and accurately reflect on the findings that were made and not made in the fact finding hearing (allowing the view to propagate that the children had been sexually abused when the Court had found that they had not) are set out in a detailed schedule of findings as an appendix to the judgment.

The children remained subject to Care Orders, with plans for therapy and reestablishing contact with the mother and very clear oversight by the Court of the next stages of the process.

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Vaccination

Posted on May 28, 2020 by suesspiciousminds

 

This is a Court of Appeal case which follows up from the Hayden J decision in the cestui que vie case (remember, all of us are legally dead because we’re all lost at sea) about vaccination.

As a super-quick bullet point, we had a MacDonald J decision that if a parent disagreed with the child being vaccinated then the LA should NOT use their powers under a Care Order to agree to it and should instead come to Court, and then this later decision from Hayden J that the LA SHOULD use their powers and should NOT come to Court.  (Legally up until this Court of Appeal hearing that meant legally that the LA SHOULD use their powers but any High Court Judge could overrule that)

Re H (A Child : Parental Responsibility : Vaccination) 2020

https://www.bailii.org/ew/cases/EWCA/Civ/2020/664.html

 

Whilst this decision was about the MMR vaccine (which in the minds of some people is controversial because of the now discredited Andrew Wakefield ‘research’ linking it to autism), it has wider application and of course it is entirely possible that whether or not children be given a vaccine for COVID-19 if one is found will become a very hot issue.

 

The Court of Appeal run through all of the relevant research and science on vaccinations and say definitively that the practice of getting an expert to report each and every time this arise is no longer needed – unless there are specific issues or vulnerabilities for the SPECIFIC child, the Court should approach the science as settled that vaccines are safe.

(On the one hand, oh god my comments on this are going to be lively, on the other, I might get Jenny McCarthy talking to me, which my 20 year old self would be very jealous about.  Let’s say, to keep it simple, that I have ABSOLUTELY NO views on this myself and have no interest in discussing the Wakefield stuff or anti-vaxx generally, I’m just reporting the case)

 

  1. It follows that, no matter what legitimate concerns parents may have had following the publication of Dr Wakefield’s discredited paper, there is now no evidence base for concerns about any connection between MMR and autism. On the contrary the evidence, as set out in the unchallenged report of Dr Douglas in this case, overwhelmingly identifies the benefits to a child of being vaccinated as part of the public health initiative to drive down the incidence of serious childhood and other diseases.
  2. I have, in (relatively) short form, rehearsed the history in relation to the MMR controversy and summarised Dr Douglas’ mainstream analysis in relation to the other vaccinations which are habitually given to children. I do so as it is my hope that it will serve to bring to an end the approach which seems to have grown up in every case concerning vaccinations, whereby an order is made for the instruction of an expert to report on the intrinsic safety and or efficacy of vaccinations as being “necessary to assist the court to resolve the proceedings” (FPR 2010 r.25.4(3)).
  3. In my judgment, subject to any credible development in medical science or peer-reviewed research to the opposite effect, the proper approach to be taken by a local authority or a court is that the benefit in vaccinating a child in accordance with Public Health England guidance can be taken to outweigh the long-recognised and identified side effects. Any expert evidence should ordinarily, therefore, be limited to case where a child has an unusual medical history and to consideration of whether his or her own circumstances throw up any contra-indications, as was the case in relation to one specific vaccine in Re C and F (Children) [2003] EWHC 1376 (Fam) (Re C and F) (see paragraph [320]).
  4. I should be clear that I am here dealing with the purely medical issues which may arise in any specific case, and am not seeking to narrow the broader scope of a child’s welfare and of any other relevant considerations which it may be appropriate for a local authority or a court to take into account when considering his or her best interests when considering the question of vaccination.

 

 

On the issue of whether the LA should seek permission from the Court or use their s33 powers

 

  1. I cannot agree that the giving of a vaccination is a grave issue (regardless of whether it is described as medical treatment or not). In my judgment it cannot be said that the vaccination of children under the UK public health programme is in itself a ‘grave’ issue in circumstances where there is no contra-indication in relation to the child in question and when the alleged link between MMR and autism has been definitively disproved.

 

(The Court of Appeal say that in private law cases – i.e mum says no vaccine, dad says vaccine or vice versa, there’s a place for the Court in resolving those disputes)

  1. Regardless of whether immunisations should or should not continue to require court adjudication where there is a dispute between holders of parental responsibility, there is in my judgment a fundamental difference as between a private law case and a case concerning a child in care. In private law, by s.2(7) CA 1989, where more than one person has parental responsibility, each of them may act alone and without the other. Section 2(7) does not however give one party dominance or priority over the other in the exercise of parental responsibility. Each parent has equal parental responsibility, even though the day to day realities of life mean that each frequently acts alone. This applies particularly where the parties live in separate households and one parent is the primary carer. As Theis J put it in F v F at paragraph [21], “in most circumstances [the way parental responsibility is exercised] is negotiated between the parents and their decision put into effect.”  As neither parent has primacy over the other, the parties have no option but to come to court to seek a resolution when they cannot agree.
  3. The situation is, in my view, different in the public law sphere when a care order is in place. A care order is only made if the welfare of a child requires such an order to be made, it having been determined or conceded that pursuant to s.31(2) CA 1989, the child has suffered or is likely to suffer significant harm attributable “to the care given to him or her not being what it would be reasonable to expect a parent to give him”. In other words, the child in question has suffered (or was likely to suffer) harm as a consequence of the care given to him or her by a person with parental responsibility. It is against that backdrop that the parent of a child in care holds parental responsibility. Parliament has specifically, and necessarily, given the local authority that holds the care order, the power under s.33(3)(b) to override the views of a parent holding parental responsibility. The local authority’s view prevails in respect of all matters save those found in the statutory exceptions or where, as I identified in Re C, the decision to be made is of such magnitude that it properly falls within the provisions of s.100.
  5. The situation of a child in care is therefore a far cry from those cases which arise in private law proceedings where parents who share parental responsibility cannot agree on what is best for their child.
  7. For these reasons, I prefer the judge’s analysis in the present case to the analysis in Re SL.
  9. Proportionality
  10. It has not been argued by Mr Bailey on behalf of the parents that allowing the local authority to consent to the immunisation would represent a disproportionate breach of their Article 8 ECHR rights. I merely say for completeness that if such an action on behalf of the local authority does represent an infringement of the parents’ or child’s rights under Art 8 ECHR, I am satisfied that, when considered through the prism of Bank Mellat v HM Treasury (No 2) [2013] 3 WLR 179 (as endorsed in a family context in Re K (Forced Marriage: Passport Order) [2020] EWCA Civ 190 at paragraph [44]), any interference is proportionate.
  12. The position of parents
  13. It is axiomatic that any local authority must involve parents in decision-making and take their views into account. Section 33 CA 1989 is not an invitation to local authorities to ride roughshod over the wishes of parents whose children are in care. As was recognised by the judge at paragraph [17], in the event that a local authority proposes to have a child vaccinated against the wishes of the parents, those parents can make an application to invoke the inherent jurisdiction and may, if necessary, apply for an injunction under section 8 Human Rights Act 1998 to prevent the child being vaccinated before the matter comes before a court for adjudication.
  15. The conclusion I have reached in relation to routine immunisations does not in any way diminish the importance of parental views where there is a real issue about what decision will best serve the welfare of a child

 

The LA can use their powers under a Care Order to vaccinate, even if the parents object. If the parents feel strongly enough, they can make an application under the magical sparkle powers  – inherent jurisdiction.

 

The Court go on to say that deciding this doesn’t give cate blanchett (yeah, I just really want my comments to blow up today) to a Local Authority where the parents are objecting to more serious medical treatment and looks at a case involving whether a child should or should not have a liver transplant.

 

 

  1. The distinction drawn here between parental views that are inconsistent with the child’s welfare and highly problematic cases where there is genuine scope for a difference of view remains a valuable one. It is a reminder that, while the views of parents must always be taken into account, the weight that is given to them depends not upon the vehemence with which they are expressed but upon their substance.
  3. As must have become clear, I do not share the inhibition felt by the judges in some of the decided cases in expressing the view that the scientific evidence now establishes that it is generally in the best interests of otherwise healthy children to be vaccinated. As Theis J said in F v F:
      1. “With due consideration for established contraindications to vaccination in an individual case, it is otherwise in every child’s interest to be protected’

It follows therefore that in my judgment, an application to invoke the inherent jurisdiction or to seek an injunction with a view to preventing the vaccination of a child in care is unlikely to succeed unless there is put before the court in support of that application cogent, objective medical and/or welfare evidence demonstrating a genuine contra-indication to the administration of one or all of the routine vaccinations.

 

In the analysis of all of the legal cases, the Court of Appeal note that for all the sound and fury expended on the MMR vaccine issue, there isn’t a reported case where the Court ruled against the vaccination.

Conclusion

  1. Pulling together the threads of this judgment, I have concluded that:
  3. i) Although vaccinations are not compulsory, the scientific evidence now clearly establishes that it is in the best medical interests of children to be vaccinated in accordance with Public Health England’s guidance unless there is a specific contra-indication in an individual case.

ii) Under s.33(3)(b) CA 1989 a local authority with a care order can arrange and consent to a child in its care being vaccinated where it is satisfied that it is in the best interests of that individual child, notwithstanding the objections of parents.

iii) The administration of standard or routine vaccinations cannot be regarded as being a ‘serious’ or ‘grave’ matter. Except where there are significant features which suggest that, unusually, it may not be in the best interests of a child to be vaccinated, it is neither necessary nor appropriate for a local authority to refer the matter to the High Court in every case where a parent opposes the proposed vaccination of their child. To do so involves the expenditure of scarce time and resources by the local authority, the unnecessary instruction of expert medical evidence and the use of High Court time which could be better spent dealing with one of the urgent and serious matters which are always awaiting determination in the Family Division.

iv) Parental views regarding immunisation must always be taken into account but the matter is not to be determined by the strength of the parental view unless the view has a real bearing on the child’s welfare.

  1. It follows that the appeal will be dismissed and that the declaration made by the judge that the local authority has lawful authority, pursuant to s.33(3) CA 1989, to consent to and make arrangements for the vaccination of T, notwithstanding the objection of the parents, will stand.

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All at sea

Posted on June 21, 2019 by suesspiciousminds

 

Hi everyone.  It turns out we are all dead.

I’m not sure in our current political climate whether that is a shock or a blessed relief to us all. It certainly explains a lot.

Hayden J was dealing with an application under section 33 (and the inherent jurisdiction) for a Local Authority who held an interim care order to register the child’s birth, the father strenuously objecting to the birth to be registered.

 

Why?

Because we are dead, obviously.

That’s not fair. Some people aren’t dead, but those people are under seven and not reading my blog.

If you are over seven, you are legally dead *

 

(*is the argument being put forward in this case. It is NOT my opinion, and anyone contacting Norwich Union in the hope of getting their life insurance payout may be out of luck. Not least because they are Aviva now)

 

T (A child), Re [2019] EWHC 1572 (Fam) (12 June 2019)

https://www.bailii.org/ew/cases/EWHC/Fam/2019/1572.html

 

But before I even get into explaining why we are all legally dead, here’s a picture of Blue.  Which will also be skilfully woven into this delicious narrative.  Buckle up, buckaroo.

 

I rest my case

 

 

  1. F has strong beliefs surrounding the concept of “sovereignty”. This is a very particular concept for him. It has nothing at all to do with contemporary debate. It is essentially a personal ideology. F believes that central to the concept is the power and writ of the individual. ‘We are each…’, he says, ‘our own sovereign. We come from the Earth, we are the creations of the universe. We are governed by a Common Law but only to the extent that we depart from three principles. These three imperatives are: to do no harm; to cause no loss; to inflict no injury.’ In circumstances where they are proved to have occurred, to the criminal standard of proof, F asserts that what he calls the Common Law is then triggered.
  3. He places great emphasis on The Cestui Cue Vie Act 1666. In the 1666 Act Section 1, F tells me, there are provisions which state ‘that if a title or living being does not prove themselves alive after 7 years they are considered lost at sea. This is the means for government to take control of the dead entity’s property.’ F believes this to be the route by which the government ‘help themselves to money and property.’ We are in such circumstances considered ‘dead entity in the eyes of the law.’ In a graphic and powerful metaphor F states to me that we ‘come to life and are temporarily risen from the dead when summonsed to court’. The requirement to ‘all rise’ when the judge enters the court is symbolic of rising for the resurrection. These views may sound unusual and somewhat eccentric. They are, however, genuinely held and I have done my best to summarise them.
  5. It is in this context that when a birth is registered, F considers this to be the equivalent of an ‘entry into a ship’s manifest’, in which the child becomes ‘an asset to the country which has boarded a vessel to sail on the high seas.’ This facet of admiralty and maritime law is pervasive in F’s thinking. The essence of F’s objection is his belief that registration will cause his son to become controlled by a State which he perceives to be authoritarian and capricious.
  7. T has been given a name and surname but F strenuously resists registration. This is notwithstanding that a failure to do so is, in a variety of practical ways, likely to serve as an impediment to the promotion of T’s welfare as well as to have an adverse impact on F’s own legal status

 

And boy does researching The Cestui Cue Vie Act 1666 take you down some rabbit-holes.  It crops up quite a lot in the  ‘law only applies to me if I agree to it’ fallacy,  and my favourite bit was

 

“When a ship BERTHS, it is given a CERTIFICATE at a DOCK,  and the Government gives you a BIRTH CERTIFICATE from a DOC, so you’re just a ship owned by the Government”

That’s someone for whom rolls of  tin-foil (9)  is always in their Ocado basket.

 

Anyway, The Cestue Cue Vie Act 1666 does not assert that everyone is legally dead unless they prove every seven years that they are alive, of course not.  It says that if a person is missing without trace for seven years they can be pronounced legally dead without their creditors or heirs having to legally prove that they are dead.

 

The Judge kindly, but sadly for me, avoids getting into legal analysis of whether the father was right, and just decides that there are benefits for a child being registered as a citizen and getting those rights, and rules that the Local Authority can do it under section 33 of the Children Act 1989  (in doing so, considering one of my favourite cases where the mother tried to name her daughter Cyanide https://suesspiciousminds.com/2016/04/15/preacher-and-cyanide/  )

 

The Judge also ruled that s33 was sufficient, and the inherent jurisdiction wouldn’t work here.

 

  1. It requires to be stated that such an order is inconsistent with my conclusion that Section 33 (3) CA 1989 is apt to address the requirement for registration. In London Borough of Redbridge v SNA [2015] EWHC 2140 (Fam) I made it clear that the inherent jurisdiction of the High Court is not, as I termed it there, ‘a lawless void’ permitting judges to do all that which we consider to be right and helpful. Its power is only available through the gateway of Section 100 CA 1989. It is perhaps helpful to reiterate what I said in London Borough of Redbridge v SNA (supra):
    1. “33. The concept of the ‘inherent jurisdiction’ is by its nature illusive to definition.  Certainly, it is ‘amorphous’ (see paragraph 14 above) and, to the extent that the High Court has repeatedly been able to utilise it to make provision for children and vulnerable adults not otherwise protected by statute, can, I suppose be described as ‘pervasive’.  But it is not ‘ubiquitous’ in the sense that it’s reach is all- pervasive or unlimited.  Precisely because it’s powers are not based either in statute or in the common law it requires to be used sparingly and in a way, that is faithful to its evolution.  It is for this reason that any application by a Local Authority to invoke the inherent jurisdiction may not be made as of right but must surmount the hurdle of an application for leave pursuant to s100 (4) and meet the criteria there.”

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Medication, ooh, medication, medication – that’s what you need

Posted on January 8, 2018 by suesspiciousminds

An interesting case decided by Recorder Howe QC, which touches on a number of important legal principles (and also to boot contains a lot of masterful understatement like this :- “Unfortunately, T was not proficient with the use of the toaster”)
T (A Child: Care Order: Beyond Parental Control: Deprivation of Liberty: Authority to Administer Medication) [2017] EWFC

http://www.bailii.org/ew/cases/EWFC/OJ/2018/B1.html

The key legal questions in this case were :-

1. When a Local Authority has DOCUMENTS (but not witnesses) who assert A, how much weight does the Court give that hearsay evidence where a live witness disputes A ?

2. Does the limb of threshold ‘beyond parental control’ require the Local Authority to prove any culpability on behalf of the parent – or is it effectively a ‘no fault’ threshold?

3. If a child’s liberty is being restricted AND a care order/interim care order is in force, does Keehan J’s assertion in Re AB (that a parent can consent to this, but not where a care order/ ICO is in force) remain good law after the Re D appeal?

4. Where a child is prescribed medication and the parent objects to that medication, can the Local Authority use their powers under s33 of the Children Act 1989 to consent to it, or is an order of the Court required?

These are all really good questions, and I’m pleased to see so many of the cases that I’ve blogged about coming into this judgment.

T was undoubtedly a very challenging child. He is now 13 years old and has autism. Dr Singh described his behaviour at the residential unit


67. As explained by Dr Singh in his report, T exposes himself to the likelihood of significant harm by:

(a) pulling out his hair from his head and pubic area;

(b) dismantling appliances and furniture;

(c) ripping off and tearing his clothes;

(d) smearing faeces and

(e) kicking-in doors when angry.
68. When angry and upset, Dr Singh describes that T will:

(a) bite;

(b) gouge at the faces of staff members;

(c) pull hair;

(d) spit;

(e) pull staff by the arms;

(f) hit and scratch.

Within the mother’s care, T was doing many of these things and I give this as a particular example

The behaviour did escalate and T then began digging holes in the walls, which was an activity M was unable to prevent and exposed T to the risk of significant harm as he would expose electrical wiring when digging into the walls within the house. I was told about 1 very large area on one wall that T had dug into that measured some 2 meters or so across and as far up the wall as T could reach

Let us look at the first question

1. When a Local Authority has DOCUMENTS (but not witnesses) who assert A, how much weight does the Court give that hearsay evidence where a live witness disputes A ?

The Recorder analyses the law in this regard with precision and brevity. I can’t improve on that, so I’ll just quote him in full

In describing the background to the current applications, I will address some matters upon which the parties do not agree. I will give my findings on these disputed matters when setting out my narrative of the history and when doing so I apply the following principles:

(i) The burden of proving an allegation rests with the party who is making it;

(ii) The standard of proof is the simple balance of probabilities;

(iii) Findings must be based on evidence and on inferences that can properly be drawn from the evidence but cannot be based on mere suspicion or speculation;

(iv) Evidence cannot be evaluated and assessed in separate compartments. A judge in these cases must have regard to the relevance of each piece of evidence to other evidence and exercise an overview of the totality of the evidence in order to come to a conclusion.
12. In her closing submissions, Ms Wordsworth relies upon the judgment of the President in Darlington Borough Council v M and Others [2015] EWFC 11, as endorsed by the Court of Appeal in J (A Child) [2015] EWCA Civ 222, where at §56 Aitkens LJ said:

“Hearsay evidence about issues that appear in reports produced on behalf of the local authority, although admissible, has strict limitations if a parent challenges that hearsay evidence by giving contrary oral evidence at a hearing. If the local authority is unwilling or unable to produce a witness who can speak to the relevant matter by first hand evidence, it may find itself in “great, or indeed insuperable” difficulties in proving the fact or matter alleged by the local authority but which is challenged.”
13. It is M’s case that she has provided her response to a number of matters in the witness box and, where her oral evidence is in conflict with a recording put to her, it is submitted that I should prefer M’s oral evidence where the author of the recording has not appeared before me.

14. Hearsay evidence is admissible in these proceedings concerning a child but I must carefully assess the weight to be given to any hearsay evidence, particularly where that hearsay evidence is disputed by M. When undertaking this task, I have reminded myself of the views expressed by Hayden J in Westminster City Council V M, F and H [2017] EWHC 518 (Fam), where at §25 he said:

“The Local Authority must, ultimately, assess the manner in which it considers it can most efficiently, fairly and proportionately establish its case. The weight to be given to records, which may be disputed by the parents, will depend, along with other factors, on the Court’s assessment of their credibility generally. Here, the reliability of the hearsay material may be tested in many ways e.g. do similar issues arise in the records of a variety of unconnected individuals? If so, that will plainly enhance their reliability. Is it likely that a particular professional e.g. nurse or doctor would not merely have inaccurately recorded what a parent said but noted the exact opposite of what it is contended was said? The reaction of witnesses (not just the parents), during the course of oral evidence, to recorded material which conflicts with their own account will also form a crucial aspect of this multifaceted evaluative exercise. At the conclusion of this forensic process, evidence can emerge and frequently does, which readily complies with the qualitative criterion emphasised in Re A (supra)…

I would add to my analysis above the observations of Dame Elizabeth Butler Sloss in Re T [2004] EWCA Civ 558 at §33:

“Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.”

The LA have to take stock as to whether to call witnesses where the documents are disputed – it is going to depend on the nature of the evidence and the presentation of the witness who disputes the documents. There’s obviously a risk in not calling the witness, but it has to be weighed up how to efficiently fairly and proportionately establish the LA case.

2. Does the limb of threshold ‘beyond parental control’ require the Local Authority to prove any culpability on behalf of the parent – or is it effectively a ‘no fault’ threshold?

The law on this is annoyingly fuzzy.

In Re K (Post-Adoption Placement Breakdown) [2013] 1 FLR 1, His Honour Judge Bellamy, sitting as a Judge of the High Court (this is the ‘forensic ferret’ case) considered that it was NOT necessary to prove or for the Court to find that the parents were culpable or responsible for the child being beyond parental control – it was sufficient to prove that the child WAS suffering significant harm and that the child was beyond parental control with the fact that he or she was beyond parental control being a contributory cause to the harm. A contributory causal relationship between the harm and the child being beyond parental control suffices. (i.e Re K says that you can find threshold met on beyond parental control WITHOUT the parents having to be to blame for this)

BUT

In Re P [2016] EWFC B2 (26th January 2016), Her Honour Judge Redgrave gives a judgment in which she expressly disagrees with the decision of HHJ Bellamy in Re K. The facts of the case were similar in many ways. The child P had suffered significantly disrupted early attachments that had caused her to develop serious mental health problems. P was adopted but that adoption broke down as a result of the behaviour displayed by P. The local authority did not attribute any culpability to the parents for P suffering harm as a result of her behaviour but attributed the significant harm to P being beyond parental control. Upon the local authority applying to withdraw the proceedings, HHJ Redgrave was invited by the parents to determine whether threshold would have been met had the proceedings continued; the central issue being whether the section 31(2)(b)(ii) requirements were met on the facts as alleged by the local authority. It was argued by the parents that as P was exposing herself to significant harm as a result of her mental health problems, there was no evidence that this was in any way attributable to the fact that she was beyond parental control and, therefore, threshold was not satisfied.

80. At §15 of her judgment, HHJ Redgrave says:

“Under the Children and Young persons Act 1969 the courts had the power to remove a child from the care of his/her parents if it was satisfied that the child in question was beyond parental control. It was not necessary to show serious harm, or likelihood of harm. The Children Act 1989 changed the law and required harm/likelihood of harm to be proved and for it to be attributable to either the care given by the parents, or the child being beyond parental control. In my judgment the ordinary grammatical construction of the section requires the establishment of a causal connection by evidence, however slight. That is lacking in the documents filed in this case and with respect I cannot agree with Paragraph 149 of HHJ Bellamy’s judgment in Re K (see above). Therefore I give the local authority permission to withdraw these proceedings on the basis that it is unlikely on the current evidence to be able to prove threshold.

There is no evidence of any kind that either the mother or the father are culpable in any way for the behaviour of their daughter and the harm she has suffered or is at risk of suffering in the future. They have fought tirelessly for her to receive the treatment she needs and in my judgment these proceedings should never have been issued.”

I will be very candid – I don’t like the decision in Re P – I think it is important, and indeed fundamental to the construction of the threshold criteria that there are some situations in which a child can be suffering significant harm as a result of their behaviour being uncontrollable where the Court can make the orders needed to manage the child WITHOUT the parents being blamed. It crops up a lot on adoption breakdown cases, but also happens with parents as here who are dealing with incredibly challenging behaviour. So I have a horse in this race – I think Re K is right, and Re P (respectfully) is wrong.

So this part of the judgment had me on the edge of my seat (I’m easily intrigued)


86. If I was to follow the reasoning adopted by HHJ Redgrave, a child who was suffering significant harm by reason of being beyond the control of the parent, but due to the characteristics of the child’s illness or impairment and not for any lack of parental effort or ability, the child could not, if the parent objected, be removed to safe care as threshold would not be met.

87. The facts of T’s case demonstrate the difficulty. M does not recognize that T is beyond her control. M has not been able to prevent T from exposing electrical wires, removing pipes from the boiler so as to cause the leakage of carbon monoxide or eating and smearing his own faeces. M has been unable to prevent T from removing his own clothes or been able to require him to dress when in company. T was, in my finding, beyond M’s control. When undertaking all of these activities T has, in my finding, suffered significant harm or been likely to suffer significant harm.

88. I have found that M has minimized the difficulties that she has experienced in providing care for T. His actions arise as a result of his ASD and learning difficulty and Dr Singh has advised that any home carer would be unlikely to be able to meet his needs. If I was to accept that section 31(2)(b)(ii) was only activated if a child was beyond parental control by reason of some want of effort or ability by a parent rather than as a consequence of T’s impairments, that would undermine the ability of any local authority to protect children without embarking on a finding of fault exercise that will, in many cases such as this, be an enquiry that the local authority will wish to avoid.

89. I have said repeatedly, during the course of this hearing, that caring for T must have been hugely challenging for M. It is impossible not to have sympathy and compassion for her given how T’s behaviours developed in ways that M could not have predicted. I have made findings that M did not always accept and act on advice and those findings do, in my judgment, satisfy section 31(2)(b)(i) and I so find. However, in my judgment, it is important to recognize that section 31(1)(b)(ii) was intended to be a true ‘no fault’ limb of the threshold criteria. A child can expose itself to harm by reason of its own behaviour, whatever the cause for that behaviour, and the state needs to have the ability to intervene and protect such children from the harm they cause to themselves if they do not respond, or are unable to respond, to the attempts of their parents or carers to protect them. Therefore, it is necessary in my judgment to interpret the wording of section 31(2)(b)(ii) “in the manner which best gives effect to the purposes the legislation was enacted to achieve”.

90. In my judgment it is immaterial whether a child is beyond parental control due to illness, impairment or for any other reason. The court simply has to consider if, on the facts, the child is beyond the control of the parent or carer. If that condition is satisfied, the court then has to determine if the child is suffering or is likely to suffer significant harm as a result of being beyond the control of the parent. If the answer to that 2nd question is ‘yes’, then section 31(2)(b)(ii) threshold is, in my judgment satisfied.

91. I find, on the basis of the factual determinations I have made in the paragraphs above, as summarized in §87, that the threshold criteria under section 31(2)(b)(ii) are satisfied.

It isn’t a settled or binding answer, but it is certainly weight to put into the scales when deciding whether the Re K (no fault needed) or Re P (parental fault is needed) line is to be followed. I agree with these conclusions. I hope that it gets properly cleaned up in precedent soon.

3. If a child’s liberty is being restricted AND a care order/interim care order is in force, does Keehan J’s assertion in Re AB (that a parent can consent to this, but not where a care order/ ICO is in force) remain good law after the Re D appeal?

I’m pleased to say that Recorder Howe QC and I are in accord on this. (I’m not sure that I ever quite grasped WHY Re AB reached that decision, but we both agree that it remains the law, having been only mentioned en passant by the Court of Appeal in Re D)

136. I have been referred to the decision of the Honourable Mr Justice Keehan in AB (A Child: Deprivation of Liberty) [2015] EWHC 3125 (Fam).

137. I have also considered the judgment of the President in Re D (A Child) [2017] EWCA Civ 1695. At §109, Munby P says:

“I should, for the sake of completeness, refer to [Keehan J’s] intervening judgment in In re AB (A Child) (Deprivation of Liberty: Consent) [2015] EWHC 3125 (Fam), [2016] 1 WLR 1160. This concerned a 14-year old boy, subject to an interim care order, who had been placed in a residential children’s home in circumstances which Keehan J found met Storck component (a). The question was whether, given the existence of the interim care order, either the parents or the local authority was entitled to consent for the purposes of Storck component (b). Keehan J held that they were not. That, as will be appreciated, is not an issue before us on this appeal. ”
138. Given that appeal decision in Re D did not affect the judgment given in Re AB, that decision remains good law. At § 29 of his judgment in Re AB, Keehan J stated:

“Where a child is in the care of a local authority and subject to an interim care, or a care, order, may the local authority in the exercise of its statutory parental responsibility (see s.33(3)(a) of the Children Act 1989) consent to what would otherwise amount to a deprivation of liberty? The answer, in my judgment, is an emphatic “no”. In taking a child into care and instituting care proceedings, the local authority is acting as an organ of the state. To permit a local authority in such circumstances to consent to the deprivation of liberty of a child would (1) breach Article 5 of the Convention, which provides “no one should be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law”, (2) would not afford the “proper safeguards which will secure the legal justifications for the constraints under which they are made out”, and (3) would not meet the need for a periodic independent check on whether the arrangements made for them are in their best interests (per Lady Hale in Cheshire West at paragraphs 56 and 57)”.
139. No party has sought to argue before me that the local authority can give consent to T’s deprivation of liberty at X unit and there is no dispute between the parties that, in the event that I approve the care plan and make a care order, a declaration authorizing the deprivation of T’s liberty is required. In the absence of such a declaration, T’s continued placement at X unit would be unlawful and in breach of article 5 ECHR. As set out by Keehan J at §34 of Re AB “The local authority, as a public body is required by s.6 of the Human Rights Act 1998 not to act in a way which is incompatible with a Convention right”.

And that leaves, finally, the medication question

4. Where a child is prescribed medication and the parent objects to that medication, can the Local Authority use their powers under s33 of the Children Act 1989 to consent to it, or is an order of the Court required?

Although in this case there had been a lot of discussion about risperidone (an anti-psychotic medication) and melatonin (a drug which promotes sleep) the actual prescription by a GP/Psychiatrist had not yet happened. It was plain that mother objected to her son being given this medication and therefore the Court was asked to give a decision as to whether IF such medication were prescribed the LA could use its powers under a Care Order (section 33 Children Act 1989) to overrule mother’s objection or whether a Court would have to be asked to decide.

(So the Court isn’t DECIDING here whether T should be given the medication, just whether if doctors said he should take the medication and mum says no, can the LA consent to it or does there need to be a Court order?)

There isn’t a direct answer to this question in the law, or clear understanding of how far section 33 extends or what its limits are.

Recorder Howe QC answers the question by looking at two areas where the Courts have ruled that section 33 is not enough to overrule a parent and a Court order is needed instead.

One is vaccination, following MacDonald J in Re SL (Permission to Vaccinate) [2017] EWHC 125 (fam), it is not appropriate for the local authority to override M’s wishes by giving its consent under section 33(3) Children Act 1989

And the other is parent’s choice of names (our old friends Preacher and Cyanide https://suesspiciousminds.com/2016/04/15/preacher-and-cyanide/ )

In the case of C (Children) [2016] EWCA Civ 374,
http://www.bailii.org/ew/cases/EWCA/Civ/2016/374.html

178. “In my judgment notwithstanding that a local authority may have the statutory power under section 33(3)(b) CA 1989 to prevent the mother from calling the twins “Preacher” and “Cyanide”, the seriousness of the interference with the Article 8 rights of the mother consequent upon the local authority exercising that power, demands that the course of action it proposes be brought before and approved by the court”.

180. Having considered in some detail the authorities referred to above, this local authority does, in my judgment, require the authorization of the court for Risperidone and Melatonin to be administered to T. I find this for 3 main reasons:

(a) each drug, whilst commonly used with autistic children, has recognized and serious side effects;

(b) T’s impairments are such that I am satisfied that he would have more difficulty in expressing that he was suffering side effects, were they to arise;

(c) If the administration of vaccinations and the change of a child’s first name are such serious interferences with the article 8 rights of a parent, so as to require an order under the inherent jurisdiction of the High Court to override the will of a parent, however unreasonable that parent may appear to be, it would be a nonsense for the reasonable concerns of this mother not to be of sufficient gravity to justify similar protections.
181. I appreciate that my decision undermines the power the local authority thought it had available to it under section 33(3) CA 1989. During the hearing of submissions, I raised myself the proposition that the administration of medication over a period of time, that is not a one-off or a short course, such as is the case with vaccinations and, indeed is the case with a change of name decision, might need to be seen differently. Dosages of medications can change. Frequency of administration of the drug can require alteration and it is simply not practicable for alterations in drug regimes to be managed by the court. However, having set that particular hare running, I have reached the conclusion that the administration of these medications, and especially the risperidone, involves such an interference with the article 8 rights of M, that any decision as to whether administration is to be started must be made by the court. Whether it is then necessary for the court to remain involved once that initial decision has been made, is a matter upon which I will hear argument at the next hearing.

So there you have it – some reported cases don’t tackle any questions of wider import beyond the case in question, some deal with one or two, but this one deals with four – the last one being potentially very significant for cases where a Local Authority is caring for children who need medication.

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