LA v (1) SB (2) AB (3) MB (a child by his Guardian David Duncan) [2010] EWHC 1744 (Fam)

This was originally an application for Care Orders under the Children Act 1989 for MB and his four siblings. MB suffered from a rare but progressive brain disease, Rasmussen’s encephalitis, that caused him to suffer from very frequent epileptic seizures, global developmental delay and partial sightedness. He also suffered from precocious puberty (he was six at the time of the hearing). Proceedings were issued by the Local Authority following receipt of reports from Dr. AD, MB’s locum paediatric neurologist and MB’s consultant paediatrician Dr. CF. They set out the serious and life-threatening nature of MB’s seizures and expressed significant concerns about the parents’ lack of co-operation in considering treatment options, including the mother’s failure to bring MB to a two day assessment programme fixed for 14 and 15 November 2009.

The evidence given at this hearing by the local authority explained that during the course of the proceedings, and probably as a result of them, the parents had engaged far more positively with the hospital and had appreciated the serious nature of MB’s seizures. The authority did not have any concerns regarding the care afforded the remaining children of the family and recognised that proceedings in relation to them were no longer appropriate. The authority therefore applied for permission to withdraw care proceedings in respect of five children. However the authority remained concerned that the parents had not agreed to the recommendations of medical staff, namely epilepsy surgery which had an 85% chance of seizure freedom, and a further 10% chance of “significant improvement”.   Whilst the local authority conceded that it did not wish to remove MB from his parents’ care under a care order, it requested that the Court consider exercising its inherent jurisdiction in relation to MB, still permissible under s100 Children Act 1989, or alternatively make an specific issue order under s8 of the Children Act 1989 that the surgery was in the child’s best interests.

The local authority’s position was borne out of concern that the relations between the hospital and the parents (which were historically very poor) would likely deteriorate if proceedings ceased and the fact that the hospital’s position remained unclear. Whilst it conceded that decision as to the treatment of a child was usually a matter for the relevant training specialists and the parents, the local authority were of the view that it would be necessary for MB’s best interests to be safeguarded by the continued involvement of the Guardian.

The hospital had previously indicated that MB’s “epilepsy is continuing to get worse ….. and unabated, this is clearly posing a significant risk to his life” it raised concerns with the local authority, prompting these proceedings that surgery was urgent and necessary to “offer him the best chance for seizure control and optimising his development potential”. However following an earlier hearing the Judge had written to the hospital to request it intervene in the proceedings or issue a summons in respect of the proposed surgical treatment for MB, so that the court could decide on a properly constituted summons whether it should order surgery as being in MB’s best interests. Instead the hospital had responded to this request with a position statement indicating that they would issue proceedings if matters became life threatening and confirmed that whilst surgery was the optimal mode of treatment, it was not necessarily the only mode. They did not, however, recommend any alternative mode, nor were they able to demonstrate that the parents had consented to any proposed form of treatment.

MB’s father submitted that the local authority should not be granted permission to withdraw the care proceedings until a proposed package of support for the family had been placed before the court.

The Judge, commenting that he believed the stance taken by both the local authority and Guardian were commendable and was explicit that he wished that nothing within the judgment should be read as critical of the stance which was adopted by the authority in the proceedings, confirmed that the question of MB’s undergoing surgery was a matter between his parents and the relevant hospital. In this instance neither the hospital nor the parents had requested the court decide the issue based on MB’s best interests and therefore there was no proper dispute and no issue for the court to decide. Having considered the extent of his jurisdiction set out within the Children Act 1989 he commented that Parliament had, when passing the Children Act 1989, “placed a sharp and clear division between the functions of courts and local authorities.” Within the current proceedings the Court could only determine whether or not MB and his siblings should be the subject of care orders. As it was not disputed that they were receiving appropriate care at home, and as the application was to withdraw the application, the proper function of the Court was to determine whether the making of that order was appropriate. Having done so, the court had no further function. He commented that it “is plainly not the court’s function to decide issues which are the responsibility of others or outside the ambit of its proper role” and dismissing the father’s request for conditions to be attached to the withdrawal of the proceedings, made it clear that the court “could not control the activities of social services or any other of the departments of local authorities, nor should it attempt to do so.”

This case demonstrates a clear commitment by the Court to safeguard the appropriate jurisdiction of the various courts. There is precedent to allow for such matters to be determined via a specific issues order, but that precedent was prior to the coming into effect of the Mental Capacity Act 2005 and the new Court of Protection where matters of an incapacitated person’s best interests would be better determined. It is clear that the Mental Capacity Act 2005 requires that were matters relate to the administration of medical regimes it is for the hospital trust to initiate proceedings within the Court of Protection rather than to rely on the local authority to initiate proceedings under their safeguarding function.

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