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Family Law

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02 DEC 2014

Re JA (Medical Treatment: Child Diagnosed with HIV) [2014] EWHC 1135 (Fam)

Re JA (Medical Treatment: Child Diagnosed with HIV) [2014] EWHC 1135 (Fam)
(Family Division, Baker J, 11 April 2014)

[The judicially approved judgment and accompanying headnote has now published in Family Law Reports [2015] 2 FLR 1030]


Medical treatment – 14-year-old child with HIV – Parents also had HIV and disputed diagnoses and treatment – Application for a declaration that the child was not Gillick-competent and it was in his best interests to start anti-retroviral treatment

Please see attached file below for the full judgment.


Declarations were made that the 14-year-old boy was not Gillick-competent to decide whether to start anti-retroviral treatment and that it was in his best interests to do so.

The parents of the 14-year-old boy and the boy himself were HIV positive. The parents had always been reluctant to accept the diagnosis and had expressed their belief that anti-retroviral treatment had adversely affected their health. They had over the years challenged the mainstream and scientific opinion of HIV and AIDs.

It was only confirmed that the boy was HIV positive in 2013 when he was tested following court proceedings in which he was placed with foster carers under an interim care order.

The boy was returned to the care of his parents pursuant to an agreement with the local authority under which the parents agreed to ensure the boy kept his medical appointments, compliws with local authority professionals, read material sent to them by medical professionals and would not discourage the boy from taking medication if he chose to do so.

The NHS Trust supported by the local authority and the guardian now sought a declaration that the boy was not Gillick-competent to make decisions regarding whether to receive ART or receive other treatment and help for HIV. The local authority also sought a care order on the basis of a plan under which the boy would remain in the care of his parents on the basis that they signed further contracts of expectations. If they failed to comply consideration would be given to the boy being removed into foster care.

It fell to be determined whether the boy was Gillick-competent to make decisions about whether to take ART and/or see a psychologist and/or engage in peer support; whether it was in the boy’s best interests to make a declaration that he should commence daily ART; whether it was in his best interests to make a declaration that he should see a psychologist and engage in peer support; whether the threshold criteria for making orders under s 31 of the Children Act 1989 had been satisfied; what orders the court should make, in particular, if the threshold criteria under s 31 were satisfied, should the court make a care order or a supervision order, either final or interim; whether he should be made a ward of court again; what orders should be made against the parents; what the terms of the contract of expectations between the Trust, local authority, the boy and his parents should be.

Just prior to the handing down of the judgment the court learned that the father had died. Therefore, judgment was given on matters relating to medical treatment only.

The medical evidence submitted to the court showed overwhelmingly that the benefits of treatment of HIV with ART outweighed the side effects. A psychologist had prepared two reports and concluded that the boy was not Gillick-competent. He found that given his age and level of understanding it would be expected that the boy would have a greater acceptance of the scientific evidence on HIV. He had a misinformed view that was not independent of his parents.

During the hearing the judge met with the boy and members of counsel to discuss his views on HIV and possible treatment. Applying the Gillick test it was clear that the boy did not accept his diagnosis and, therefore, did not fully understand the implications of not receiving treatment. He lacked the understanding necessary to weigh up the information and was not Gillick-competent in relation to the decision whether or not to have ART. However, the other questions of whether he should undergo monitoring and participate in peer support were less complex and in relation to those decisions he was competent.

The evidence clearly established beyond reasonable doubt that it was in the boy’s best interests to start ART. Applying s 1(1) of the Children Act 1989 and considering the boy’s physical needs, the risk of harm if he did not take the medication, outweighed the risk of harm through side effects, the risk of emotional harm of going against his parents’ views and his own expressed wishes and feelings. A declaration was made to that effect.

The care application would be adjourned. The interim care order was continued.

Case No: FD13C00026/FD12P00424
Neutral Citation Number: [2014] EWHC 1135 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand
London
WC2A 2LL

Date: 11/04/2014

Before :

THE HONOURABLE MR JUSTICE BAKER

- - - - - - - - - - - - - - - - - -

IN THE MATTER OF THE SENIOR COURTS ACT 1981 AND IN THE MATTER OF THE CHILDREN ACT 1989 AND IN THE MATTER OF JA (A MINOR)

Between :

AN NHS TRUST (1)
A LOCAL AUTHORITY (2)
Applicants

- and -

MR A (1)
MRS A (2)
JA (3)
HIS CHILDREN’S GUARDIAN (4)
Respondents

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Angus Moon QC and Susanna Rickard (instructed by a solicitor acting on behalf of the Trust) for the First Applicant NHS Trust
Karl Rowley QC and Nicole Erlen (instructed by Local Authority Legal Department) for the Second Applicant Local Authority
Janet Bazley QC and Clare Garnham (instructed by Chambers Solicitors) for the First and Second Respondent Mr. and Mrs. A
Barbara Connolly QC and Sorrel Dixon (instructed by A and N Care Solicitors) for the Third Respondent, J
Taryn Lee QC (instructed by Howells Solicitors) for the Fourth Respondent, the Children’s Guardian

Hearing dates: 24th to 28th February , 6th March, 8th April 2014

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Judgment

Re JA (Medical Treatment: Child Diagnosed with HIV) [2014] EWHC 1135 (Fam)

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