Family Law

Family Law Newsletter #0921.02.18

Statute Updates

The Adoption and Care Planning (Miscellaneous Amendments) Regulations 2018 comes into force on the 5th March 2018. Providing for an adoption agency to reveal certain information to another adoption agency, to assist in the adoption process.

Case Updates

Kings College Hospital NHS Foundation Trust v Haastrup (Withdrawal of Treatment) [2018] EWHC 127 (Fam)

High Court: McDonald J

This case concerns IH, a boy aged 11 months, born on 18 February 2017 at King’s College Hospital by way of an emergency caesarean section. The main issue was whether it was in IH’s best interests for the life sustaining treatment to continue, which if discontinued would, on the evidence before the court, lead to IH’s death.

The Trust applied for a declaration that the provision of life sustaining treatment is no longer in I’s best interest. Both parents opposed the application.

The Trust sought the following declarations: (i) IH lacks the capacity to consent to or to refuse medical treatment, (ii) it is in the best interests of the child, that he is extubated and receives no further forms of ventilation, which is to take place either at King’s College Hospital or a hospice, where IH will remain or he receives palliative care only.

MacDonald J indicated the key principles that can be drawn from the authorities, in particular in Yates and Gard v Great Ormond Street Hospital for Children NHS Foundation Trust [2017] EWCA Civ 410. The courts’ paramount consideration was the best interests of the child. ‘Best interests’ is used in its widest sense, including every kind of consideration capable of bearing on the decision, including but is not limited to, medical, emotional, sensory and instinctive considerations.” The Court must do the best it can to balance all of the conflicting considerations to determine where the ‘final balance lies’ and must form its own view as to the child’s best interests.

MacDonald J also held that there is a strong presumption in favor of taking all steps to preserve life, but it is not rebuttable. It may be outweighed if the pleasures and the quality of life are sufficiently small and the pain and suffering and other burdens are sufficiently great.

The court must consider the nature of the medical treatment, what it involves and its prospects of success and the likely outcome for the child. Each case will depend on their independent facts.

The Judge stressed the importance of considering both the views and opinions of the doctors and the parents and said that the views of the parents may have ‘particular value in circumstances where they know well their own child” but the Court must keep in mind that the parents’ views may be “coloured by emotion or sentiment”.

Finally, he notes that the views of the child must be considered and be given appropriate weight in light of the child’s age and understanding.

The Mother of IH made a further application for an adjournment of the case to gather medical evidence. The judge refused the application and stressed it would cause further delay for IH, which is not in his best interests.

MacDonald J then concluded that ‘in accordance with IH’s best interests, I make the declarations sought by the Trust.’

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AB (A Child) [2018] EWFC 3

Family Court sitting at the RCJ: Sir James Munby President of the Family Division

This case concerned the use of care proceedings in cases involving children with disabilities and contentious care plans.

Mr. and Mrs. N’s youngest child, AB, had a life-limiting condition; a complex neuro-metabolic, neuro-developmental, neuro-degenerative disorder. AB was severely neurologically disabled and his care routine was complex and intensive. AB’s sister had a less serious form of the condition.

Mr. and Mrs. N were described as devoted to both their children and determined to do the best for them. The only reason that the local authority had become involved was as a result of the children’s medical needs.

In May 2016, Parker J, on the application of the NHS Trust, had made 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 treatments in the event that his condition deteriorated to the extent that such treatments would be necessitated.

The local authority had subsequently issued care proceedings in relation to AB The core allegations in support of the threshold document 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.”

In March 2017, HHJ Toulson QC granted a care order in relation to AB. HHJ Toulson QC rejected the parents’ contention that he should no longer be exercising the care jurisdiction in relation to AB, that the case had become an “end-of-life treatment” case and that it should be dealt with under the inherent jurisdiction. He granted the parents permission to appeal on the basis that the evidence “established that whilst the care to which the local authority took objection caused the child pain, it also prolonged his life. The evidence on this point was that the child would probably have died before now but for the care.”

The Court of Appeal allowed the parents’ appeal on 9 May 2017; the care order was set aside and the case remitted for a rehearing on all issues.

The President granted an order allowing the application for a care order to be withdrawn on the basis that the parties agreed that AB and his sister were to remain at home with their parents. He observed that;

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.

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Re A-F (Children) [2018] EWHC 138 (Fam)

High Court: Sir James Munby President of the Family Division

The President has considered the interface between care proceedings and deprivations of liberty which may require the courts’ authorisation in order to be compliant with Art 5 ECHR. This judgment is essential reading for practitioners in the care setting, when greater than usual restrictions are imposed on the young person. The court declined to set an age limit for the issue to be considered, and sets out the procedural steps to be taken whenever the question of a deprivation arises in care cases.

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