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Family Law

The leading authority on all aspects of family law

08 DEC 2009

Seriously ill child 'disowned by the state', says Justice Hedley

Re I [2009] EWHC 3173 (Fam)

A High Court judge has criticised two local authorities for putting budgets ahead of the welfare of a sick child.

The six-year-old boy, Child I, was born with a serious heart condition on Orkney in August 2003 but his parents were unable to look after him and he is now cared for by a distantly related couple in Cambridgeshire.

At first Orkney Islands Council offered the couple financial assistance but now say that will be withdrawn and Cambridgeshire County Council should take over. Cambridgeshire however, refused to become involved believing that Orkney should continue to be responsible.

Mr and Mrs O applied for a Special Guardianship Order (SGO). Although both local authorities agreed that the continued placement of 'I' with Mr and Mrs O was in his best interests, neither wished to fund the Special Guardianship report which the Court must have before it can make an SGO and neither wished to financially support the placement. Mr Justice Hedley ruled that Cambridgeshire County Council should provide the report as the child is habitually resident in Cambridgeshire and the Scottish council did not fall under his jurisdiction.

Fisher Meredith's solicitor, Noel Arnold, who is representing Mr and Mrs O, told Newswatch that his clients were "desperately worried" about how they are going to meet the needs of the boy.

"Our clients took on the uphill task for caring for the child who has not only a medical condition but also special educational needs. They should have been supported and indeed applauded by both authorities involved. Instead they are left feeling abandoned and completely unsupported.

"They have also exhausted finances on the legal proceedings. Orkney had made numerous promises to our clients to support the placement and have quite disgracefully reneged on all those promises by hiding behind the fact that the English court cannot force it to make good its promises," Mr Arnold said.

In his judgment, Mr Justice Hedley said he was so concerned by the actions of the two local authorities that he decided to make his judgment public. He also directed that copies of the judgement should be sent to Secretary of State at the Department of Children and Families and the relevant Minister in the Scottish Government.

"I confess that as I listened to these matters, disbelief was not the only thought or emotion that I experienced. Indeed I found it necessary to adjourn briefly so as to ensure that no wholly improper judicial observations escaped my lips. This judgment has been reserved not because the issues are difficult (they are not) but because I did not trust myself to express my views in a temperate manner. I have always had a high regard for the contribution that social workers make to the family justice system but if in fact we have reached a stage where budget needs trumps welfare then we all need to know," the judge said.

Mr Justice Hedley also called for more discretion to be given to local authorities in such cases so that they can honour informal agreements without conflicting against their legal obligation to protect a finite public budget.

The judge paid tribute to the foster parents "for their steadfastness through all these difficulties not of their making".

"Because they are honourable people committed to 'I', they cannot just repudiate the agreement as Orkney Islands Council claim to be entitled to do. They are stuck with the poison fruit of these two local authorities' dispute.

"I dare to think that most citizens of this state would like to see them duly supported as they believed that they would be. I dare to think that many citizens of this state will feel a touch of shame that things could work out as they appear to have done in this case", the judge added.

Orkney Islands Council said in a statement: "It is [our] view that 'I' has been habitually resident in England since 2005. The responsibility and rights of his parents are likely to be governed by English law."

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