G (A Child), Re

Where no issue concerning a child’s welfare remains for determination in ongoing proceedings, and the child is not in care, the court has no role in deciding whether a parent without parental responsibility should be told of the child’s serious illness. That decision belongs to those with parental responsibility.

The court’s power to make a Children Act 1989 section 8 order of its own motion must be exercised cautiously and only where an order is better for the child than no order. Even where informing the other parent might ordinarily be expected, serious risks of violence and disruption do not transfer the decision to the court.

X, a four-year-old child with a potentially terminal illness, lived with his mother and stepfather under residence and supervision orders. His father had no parental responsibility, no contact with him, and a history of serious violence and disruption.

After making the residence order, the county court directed the local authority to offer the father information about X’s condition and to disclose further information if requested. The mother appealed. The central issues were whether the question was justiciable, whether the court had any continuing jurisdiction to direct disclosure, and whether withholding the information engaged or breached Article 8 of the European Convention on Human Rights.

Disposition

Lord Justice Wall delivered the first judgment. Lord Justice Scott Baker agreed. The appeal was allowed, and paragraphs 3 to 5 of Judge D’s order were discharged insofar as they concerned disclosure of information to the father. Publicly funded costs were subject to detailed assessment.

1. No continuing justiciable issue. Once the residence order had been made, there were no ongoing proceedings between the parents and no issue concerning X’s welfare for the court to determine. X was not in care, and the local authority did not have parental responsibility. The court therefore had no role in deciding what the father should be told.
2. Parental responsibility and non-intervention. The decision belonged to X’s mother and stepfather, who held parental responsibility. The court recognised that it could make a Children Act 1989 section 8 order of its own motion under section 10(1)(b), but stressed that it should think very carefully before doing so. Under section 1(5), an order should be made only where it was better for the child than making no order.
3. Application to the circumstances. The mother and stepfather’s decision not to inform the father was not irrational. They had substantial reasons to fear violence and disruption during what might be the final weeks of X’s life. Although a father, particularly one with parental responsibility, would ordinarily be expected to be informed, the underlying decision remained one for the holders of parental responsibility. The court should respect it.
4. Article 8. Wall LJ considered that there was no family life between the father and X. Alternatively, the father’s conduct had destroyed any such family life. If Article 8 was engaged, the mother’s and child’s rights would prevail and any interference with the father’s rights would be proportionate under Article 8(2).

The supervision order remained in force, and the local authority was encouraged to continue advising, assisting and supporting X and his family.

• Court of Appeal (Civil Division): allowed the mother’s appeal and discharged the relevant disclosure provisions of the county court order.
• Liverpool County Court: made a residence order in favour of the mother and stepfather and subsequently directed the local authority to offer and provide information about X’s medical condition to his father.