London Borough of Brent v C

A local authority caring for a child must obtain an appropriate legal basis for exercising parental responsibility, particularly where the child is no longer proceeding towards adoption and significant medical decisions are required. Prolonged failure to secure judicial scrutiny, legal advice and independent representation may be incompatible with the child’s rights under Article 8 of the European Convention on Human Rights. Where the statutory threshold is agreed, the court may make a care order conferring parental responsibility on the local authority. The court may also approve, under the High Court’s inherent jurisdiction, a terminal care plan where it serves the child’s best interests by avoiding futile invasive treatment and maximising dignity.

The local authority had accommodated C under section 20 of the Children Act 1989 from shortly after his birth. C was later diagnosed with a rare progressive and fatal neurological disorder, which prevented the anticipated adoption and required increasingly significant medical decisions. The local authority did not commence care proceedings until C was nearly four and a half. It then sought a care order, declarations concerning future medical treatment, and resolution of alleged human-rights breaches. The mother and the child’s guardian alleged breaches of the child’s rights, while the mother also raised her own position. The central issues concerned the appropriate legal authority for care and medical decision-making, the emergency care plan, and Article 8 compatibility.

1. The court made a care order by consent under section 31 of the Children Act 1989. The agreed threshold was met because, in the absence of the local authority exercising parental responsibility, C would be likely to suffer significant harm. The order conferred parental responsibility on the local authority, which in practice would exercise it exclusively because the mother did not wish to do so.

2. The local authority had acted without a proper legal basis after it became clear that C would not be placed for adoption and that substantial medical decisions were required. Its delay in securing judicial scrutiny, legal advice and a children’s guardian was incompatible with C’s Article 8 rights. The independent reviewing officer likewise acted incompatibly with Article 8 by failing to identify the infringement, take effective steps to remedy it, or refer the circumstances to Cafcass Legal.

3. The court approved the agreed emergency care plan under the High Court’s inherent jurisdiction. It declared that the plan made the best possible provision for C’s terminal palliative care and death, securing the least pain and discomfort and maximum dignity. Aggressive or invasive treatment would not be pursued merely in an unsuccessful attempt to prolong life.

4. The mother’s possible Convention rights were not determined as infringed. The court considered that issue considerably more doubtful and recorded the parties’ agreed statement that she had been left in uncertainty for too long and that corrective procedures were required. Her damages claim, and the other damages claims, were not pursued.

First-instance judgment. The judgment records earlier accommodation under section 20 of the Children Act 1989 and the subsequent commencement of care proceedings, but no prior judgment or appeal is stated.