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Re AB (A Child): Establishing a care plan amidst a difference of views

Sir James Munby heard the matter of AB (A Child) in the Royal Courts of Justice on 16 January 2018. The case, which spans over two years, is centred on AB who is a severely disabled child. The case highlights the disparity of views relating to the medical treatment of those with significantly reduced quality of life and focuses solely on the welfare of AB and putting him in the best position he can be in.

Background

Mr and Mrs N are parents of a six-year-old girl and a four-year-old boy, AB, who is the main focus of this court case. It is aptly put by Sir James Munby that “life and fate have dealt cruelly with Mr and Mrs N and their children”. AB has a complex disorder that is a life-limiting condition and leaves him profoundly neurologically disabled. Because of this, AB requires specific and intensive care in his daily routine. AB’s sister also has this condition, although hers is less severe. It is due to these difficulties that Mr and Mrs N find themselves in the court.

History of the case

In 2016, the NHS Trust made an application that the Trust would be acting lawfully by withholding certain medical treatment as this would be in AB’s best interest. This includes forms of resuscitation. Parker J in that judgment noted the parents’ “self-evident and obvious love for … their religious beliefs also require respect for life”. It was noted that the hospital wanted AB to be at home with the permanent care of one of his parents as he was more settled, particularly when in his mother’s arms. The judge noted that AB’s parents were at liberty to treat their child as they wish.

Mr and Mrs N applied for permission to appeal but this was refused. Later that month, the local authority made an application to Parker J to prevent Mr and Mrs N from removing AB from the hospital. Parker J made the order that same day but discharged it three days later explaining that “it is in AB’s interest to return home immediately for periods of up to 48 hours”.

In February 2017, care proceedings regarding AB were issued by the local authority who had previously issued in relation to his older sister. The allegations made were that AB’s parents were “reported be uncooperative, rude and aggressive and intimidating of medical staff.” Due to such behaviour, it was argued that no care package of support for AB could be implemented. A six-day hearing in March 2017, heard by His Honour Judge Tolson QC resulted in a care order being made for AB but not for his sister.

The reasoning for this was laid out by Tolson J who stated that the parents effectively had taken over the giving of rescue medication and that such course was adopted so that the parents were able to not give the medication in the correct doses. The medication is such that it may, over time, compromise AB’s respiratory system and shorten his life and for this reason the parents were not correctly administering it. This, coupled with the parents’ dishonesty regarding the medication, has led to AB being in unnecessary pain. Tolson J acknowledges that the parents would not see the issue in this way but that the view of the doctors involved must be regarded as the truth.

Tolson J states that if the parents were to change their position and “to come to regard the quality of AB’s remaining life”, the local authority’s conclusion may not be correct. However, given the history it is unlikely that this will be the case. It was thus concluded that a care order for residential and perhaps foster care for AB was necessary when looking at his welfare interests. Tolson J also rejected the argument of Mr and Mrs N that he should no longer be exercising the care jurisdiction as the case had become an “end-of-life treatment case”. Tolson J did, unusually, grant the parent permission to appeal.

The appeal

The position of AB’s guardian in the appeal was that the judge had failed to set out evidence in relation to threshold as well as not addressing the second limb of section 31(2)(b)(i) of the Children Act 1989. This limb stipulates that a court can only make a care order if it is satisfied that:

(b) the harm, or likelihood of harm, is attributable to—

(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii) the child’s being beyond parental control.

Further, the guardian argued that the judge had not undertaken appropriately rigorous evaluation on the issue of welfare, nor considered proportionality.

Mr Verdan, on behalf of the local authority attached, in an email, the most recent expert evidence. It outlined that AB’s current care package is working well and that Mr and Mrs N’s behaviour has only really improved since the cessation of the original hearing. If it is determined that the parents accept the medical benefits in the care plan, then the Local Authority need not seek to remove AB from Mr and Mrs N. The expert states that AB’s paramount need is that of safeguarding which is satisfied under the Child Protection process. Mr Verdan reiterates that the Local Authority no longer seek to remove AB from the care of Mr and Mrs N on the condition that AB remains at home and subject to a Child Protection Plan and an ongoing support package.

Upon receiving the parents’ final evidence and a draft order for the judge to sign, an order was made that same day. This order dictated that the guardian was to submit a final analysis. The analysis discussed Mr and Mrs N’s clear love for AB and that they have always done what they believe is best. Given the developments to Mr and Mrs N’s outlook and the improvement to AB’s circumstances, no order needed to be made.

Munby P made an order on 18 September 2017. It summarised the issues that had come before the court and stated that the parties acknowledge the factual disputes that remain, that no adverse findings have been made in respect of the parenting of AB and that the local authority and children’s guardian deem it appropriate for AB to remain subject to a Child Protection Plan. It follows that the local authority and parents are committed to working together and agree that the current care plan is beneficial to AB. As long as the correct procedures continue to be followed, no further order needs to be made.

This case has always had at its centre the interests of AB, though the view on how to best serve AB was conflicting between the parties involved. Following the judgment, the family sent Munby P a “heart-warming photograph of the family by the Christmas tree”. AB is reported to be stable and largely comfortable in his current arrangement and, despite the difficult circumstances for the family, everyone involved remains committed to ensure that AB is the most content that he can be.

 

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