(Family Division, Holman J, 28 April 2016)
Medical treatment – Public law children – Child surrendered for adoption – Diagnosis of terminal illness – Mother retained parental responsibility and local authority failed to apply for care order – Whether there had been a breach of the European Convention
The now 5-year-old child was conceived when the mother was only 13 and the identity of the father was unknown. The mother was clear from prior to the birth that she wished for the child to be adopted. He was placed with a foster carer under s 20 of the Children Act 1989 within days of birth and had remained there ever since.
When he was 6 months old he began displaying symptoms and was eventually diagnosed with a rare inherited condition which progressively destroyed nerve cells in the brain and spinal cord and which, in infants, inevitably led to an early death. That diagnosis frustrated the local authority plans for adoption, and an application for a care order was not made until the child was 4-and-a-half. Due to the mother having sole parental responsibility for the child, she was frequently approached by the local authority to provide various consent to medical procedures.
The local authority now applied pursuant to the inherent jurisdiction and for declarations as to future medical treatment and the management of the child's inevitable and increasingly approaching death. The mother and the guardian on behalf of the child submitted that the history of the proceedings had involved breaches of their rights under Art 8 of the European Convention. The mother maintained that she wished to have no involvement in the life of or the decision-making in relation to the child, aside from being informed when he had died.
A care order was granted to confer parental responsibility on the local authority. A schedule to the order recited the mother's wish not to be contacted by the local authority apart from notification of the child's death. Another schedule set out the emergency care plan for palliative care for the child which had been agreed by Great Ormond Street Hospital and the local hospital, the foster mother and the local authority.
The local authority accepted that it had erred in failing to apply for a care order more promptly and as soon as it became apparent that the child would not be adopted and was seriously ill, requiring significant decisions to be made about his care. The independent reviewing officer had also failed to provide an independent safeguard for the child. Declarations were made stating that the child's European Convention rights had been breached and noting that the local authority had failed in relation to the interests of the mother.
Case No: SW15C00406
Neutral Citation Number:  EWHC 1335 (Fam)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Thursday, 28th April 2016
THE HONOURABLE MR JUSTICE HOLMAN
(sitting throughout in public)
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B E T W E E N:
LONDON BOROUGH OF BRENT
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Transcript from a recording by Ubiqus
61 Southwark Street, London SE1 0HL
Tel: 020 7269 0370
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Mr Roger McCarthy QC and Miss Elizabeth Coleman appeared on behalf of the London Borough of Brent
Miss Pamela Scriven QC and Miss Emily James appeared on behalf of themother
Mr Tim Parker appeared on behalf of the child's guardian.Mr Zimram Samuel appeared on behalf of the Independent ReportingOfficer
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MR JUSTICE HOLMAN:
 This case raises issues both as to the end of life treatment of a very ill child, and as to alleged breaches of rights under the European Convention on Human Rights, in relation to which damages were claimed. These are both issues which ought to be heard, so far as possible, in public. With the complete agreement of all parties, I have heard this whole case in public, and now give this short judgment in public. I will not name any individual and will avoid specificity in some of the details, but I direct that any report of, or relating to, this case or judgment must not name or identify the child concerned, nor his mother or maternal family, nor his foster mother, nor in any way identify the address or whereabouts of any of them. This confidentiality is of the utmost importance in this case.
 The case is one of very great sadness and tragedy. At the age of 13, the mother conceived a child. The father was about the same age. The mother does not know the name or identity of the father, other than his first name. Soon after the conception, the father returned to live abroad. The mother did try to find him there but was not successful. It is unlikely that he even knows that he fathered a child.
 The mother gave birth when she was 14. The child, whom I will call C (which is not the initial of any of his actual names), is now almost five. Even before the birth, the mother made clear to social workers and others that, in view of her own very young age, she felt it better for both him and herself that she have no contact or involvement with him at all and that he should be adopted. She has never wavered in that decision and view. Apart perhaps from the most immediate aftermath of the birth itself, she has never held him, nor seen him, nor wished to do so. She agreed with the local authority that he should be accommodated under section 20 of the Children Act 1989, and he was placed within days of his birth with the foster mother with whom he still lives. The love and care which the foster mother has given to him in the circumstances that I will shortly briefly describe, have been described as ‘exemplary’ and are beyond praise.
 After the required six weeks had elapsed after C’s birth, the mother signed documents consenting to his placement for adoption and to his adoption. The local authority began to investigate potential adopters and narrowed their list down to two families. Then the tragedy began to unfold.
 When C was about six months old, his foster mother, and then his GP, began to realise that he was not developing normally. Extensive investigation was undertaken, both at his local hospital and at Great Ormond Street Hospital for Children. For the purposes of this judgment, I can fast forward and summarise the outcome. He is positively diagnosed as suffering a known, but rare, inherited disorder, which progressively destroys the nerve cells in the brain and spinal cord, and which, in infants, inevitably leads to an early death. He was initially expected only to live for about two years. That he has survived to almost five is a tribute to modern medical science and the devoted care he has received from his foster mother and the many doctors and nurses who have been, and are, involved in his care.
 The emergence of this diagnosis inevitably stopped the anticipated progress towards adoption, and frustrated any plan of adoption. It meant also that numerous decisions and consents were required for progressively more invasive and significant medical treatment. Although the mother had said that she did not wish to be involved with the child at all, she was the only person with parental responsibility for him, so the local authority frequently approached her for the required consents. It was not until October 2015, when C was almost four and a half years old, that the local authority first commenced any legal proceedings. They then, belatedly, as they now admit, applied for a care order and first obtained an interim care order.
 More recently, in February 2016, they issued a freestanding application, for which the court gave the required permission, for declarations under the inherent jurisdiction of the High Court as to future medical treatment and, specifically, the management of C’s inevitable and increasingly approaching death.
 These are the applications before me today. Within the care proceedings, as they are entitled to do, the mother, and the guardian on behalf of the child, have made claims that the history, as I have so briefly summarised it, involved breaches of rights of both the child and, separately, the mother, under the European Convention on Human Rights, for which the mother, but not the guardian on behalf of the child, claimed damages.
 The mother has participated in these proceedings and was present in the courtroom throughout yesterday. But her firmly stated position remains that she does not wish to have any involvement at all in the life of, or decision making as to, C, and wishes only to be informed after he has actually died, but not when his death becomes imminent. She has further, and very appropriately, said that she would wish the form and ceremony of his funeral to be chosen entirely by the foster mother, who may choose also whether his body is buried or cremated.
 The current prognosis is that C will die within months, although he has exceeded previous expectation and may yet survive one or two years. But the disorder is progressive and there is no cure, and death in childhood is inevitable. Although aged almost five, he is unable to speak and is blind. He cannot support himself unaided, he cannot swallow, and he is fed artificially through a gastric tube. He does, however, show awareness of his surroundings, and responds to music and to the sound and touch of his foster mother.
 The essential purpose of the application for a care order is to confer upon the local authority parental responsibility so that they have a proper legal authority for future decision making for C. That parental responsibility would remain shared with the continuing parental responsibility of the mother. However, the mother has made quite clear (and it is all very clearly set out in the order I am invited to make) that she herself does not wish to exercise any parental responsibility at all; and so, in practice, it will be exclusively exercised by the local authority.
 There are agreed threshold criteria for the purpose of section 31 of the Children Act 1989, the essence of which is that, as the mother does not wish to exercise any parental responsibility, or to care for the child in any way at all, he would be likely to suffer significant harm if the local authority do not do so. With the agreement of all parties, including the child’s guardian, I will make a care order on that basis.
 I now turn to the application under the inherent jurisdiction of the High Court. Within these proceedings, there will be an order, made by consent of all parties, to which two schedules are attached. The first is a schedule setting out, with clarity and in some detail, the mother’s clear wish not to be contacted in any way in the future, save to be informed, by an agreed and specified method, once C has actually died. It contains provisions with regard to C’s funeral and any residue of his very small personal savings. The essence is that the mother leaves decisions as to the funeral entirely to the foster mother, and agrees that if (which is unlikely) there is any surplus of his savings after his funeral has been paid for, they should be given to a charity of the foster mother’s choice. The second schedule is the emergency care plan, which has been discussed and agreed between the treating staff at Great Ormond Street Hospital, and the local hospital, and the foster mother, and the local authority, and made available also to the mother yesterday.
 I am quite satisfied that that emergency care plan makes the best possible provision, in C’s best interests, for his terminal palliative care, and ultimate death, to ensure the least pain and discomfort and maximum dignity, and I will make a declaration to that effect. He will not be treated aggressively or invasively in a forlorn attempt to prolong his life. Redacted copies of both those schedules have, in the interests of transparency and openness, been supplied, at my request, to the representative of the media present in the courtroom today (there are no members of the public actually present in the courtroom).
 I now turn very briefly to the human rights aspects of this case. The London Borough of Brent have freely admitted that they erred in this case by not applying for a care order far sooner, and as soon as it was apparent that C could not be adopted, and that he was seriously ill and required significant decisions to be made with regard to his medical treatment. I wish to stress very clearly that there is no suggestion at all that the London Borough of Brent erred in any way at all in the decisions they have actually made for the care and welfare of this child, or in the care they have provided for him by placing him with, and supporting him in, the care of his foster mother. On the contrary, the very fact that he has lived so long tends to indicate that the local authority, as well as medical teams and the foster mother, have done everything they possibly could do for him. For that, the London Borough of Brent, as well as the foster mother, and the medical teams, deserve to be complimented.
 However, they did do so without any legal basis for doing so, or any legal right to do so, once it was clear that he was no longer a child who was due to be placed for adoption. Further, the independent reviewing officer, whose function and duty it was to provide an independent safeguard for the child, failed to do so by failing to take any steps to ensure that the local authority did apply for a care order or otherwise regularise the position. These failures did, as the local authority and the independent reviewing officer both readily admit, amount to acting, or failing to act, in a way which was incompatible with the rights of the child under Article 8 of the European Convention on Human Rights.
 It has been agreed that I should declare, which I do now publicly declare, that:
1) The London Borough of Brent acted incompatibly with C’s Article 8 rights by delaying in allowing him to have access to judicial scrutiny, legal advice, and a children’s guardian, about his family situation.
(2) The independent reviewing officer acted incompatibly with C’s Article 8 rights in that she failed:
(i) to identify the above infringement of C’s human rights by the local authority;
(ii) to take effective steps to resolve the human rights infringement; and
(iii) to refer C’s circumstances to Cafcass Legal.
 Quite separate from the rights and position of the child, the effect of the failures by the local authority and the independent reviewing officer was that the local authority continued to approach the mother (who was herself still a child) for agreement as to medical procedures, although they knew that she had made it very clear that she did not want these intrusions into her own young life. Whether there was any infringement of any rights of the mother under any part of the European Convention on Human Rights is, frankly, much more doubtful, although I have not now heard full argument on the point. It has been agreed that the position in relation to the mother is resolved by the following agreed statement, which will be attached to the order, and which I will now also read out:
(A)The London Borough of Brent left the mother in a position of uncertainty for far too long. This must have caused her concern and should not have been done. Brent need to implement their revised section 20 procedures so that this will not happen again in relation to another family. The local authority have provided, to the parties to these proceedings and the court, a document headed “Actions taken and proposed by London Borough of Brent”.
(B) The independent reviewing officer, having correctly identified the following:
(i) that the mother was being required to sign agreements to various medical procedures for the child, despite her expressed wish not to have to do so;
(ii) that the mother was a child herself; and
(iii) that the local authority needed to safeguard her interests and that it was important that legal advice should be sought;…accepts that she failed to ensure satisfactory steps were taken by the local authority to remedy the situation or to notify her concerns to Cafcass Legal.’
 I am glad that the damages claims have not been pursued, and I consider that the mother and her legal team made wise decisions yesterday not further to pursue them.
 I conclude this short judgment with some very brief comments with regard to the three main people in this tragic story. First, the mother. A reader might possibly consider her determination to have nothing to do with her child was heartless. That would be very unfair and very mistaken. At the age of 14, she had to make, and did make, a courageous decision that she could not offer a proper home or appropriate care for her baby, and that it was in his best interests, as well as her own, that she hand him over from the start for adoption, in the confident expectation that a loving, caring, adult family would soon be identified, which the adoption system exists to provide. That was not a heartless decision, but a loving, caring and child focused one. By the time she learned that her child was so afflicted as to be effectively unadoptable, he was totally bonded with his foster mother, who was by far the best placed to continue to care for him until his expected early death.
 Second, the foster mother. I have already described her as being beyond praise. For several years now, she has had to anticipate the inevitable death of this child to whom she has devoted so much and whom she loves so dearly. His death remains certain and closer, but the timing of it is still very uncertain. I have the utmost confidence that she will do everything in her power to provide him with love and care to his last breath; but my heart goes out to her in her task.
 Finally, C himself. It was his tragic destiny that his life would be short and of limited quality. He has not known the joys of childhood that normal healthy toddlers and young children know. However, he has known love and devotion and has been enabled to maximise what his one life could provide. It is my sincere and confident hope that, when the time comes, it will end with the least pain and discomfort and the maximum dignity possible.