YY (Children: Conduct of the Local Authority)

A local authority exercising parental responsibility under a care order has broad powers, but those powers are subject to statutory limits and the court’s inherent jurisdiction. A decision involving the withdrawal of life support, with potentially profound consequences for the child and the Article 8 rights of others with parental responsibility, must be placed before the High Court. A special guardianship assessment must be thorough, comprehensive and evidence-based, and supported by a comprehensive plan for support and contact. The court also emphasised that local authorities must promote reasonable family contact, preserve the child’s identity and properly respect parental responsibility.

The proceedings concerned three surviving children who had been subject to care orders and had lived for many years with prospective special guardians. Their sibling had died after a serious illness. The mother sought contact and findings concerning the local authority’s conduct. The local authority sought discharge of the care orders in favour of special guardianship orders and permission to change the children’s surnames.

The hearing became principally a fact-finding exercise concerning prolonged failures in contact, life-story work, identity, delegated parental responsibility, medical decision-making and the preparation of an updated special guardianship assessment. The central issues were whether those failures were proved and what procedural course should follow.

1. Findings of fact. The court accepted the agreed concessions and found proved the further allegations concerning the preparation of the special guardianship assessment. The assessment had been conducted on a paper-only basis, without direct work with the children or prospective special guardians. The assessing social worker was placed under pressure to change an adverse recommendation, and the final report did not provide a rational basis for the recommendation made.
2. Medical decision-making. Under Children Act 1989, s 33, a local authority with a care order has parental responsibility and may determine the extent to which a parent exercises it only where necessary to safeguard or promote the child’s welfare. The court approved the approach in Re C (Children) [2016] EWCA 374, reinforced by Re E (A Child) [2018] EWCA Civ 550 and Re H (A Child) (Parents Responsibility: Vaccination) [2020] EWCA Civ 664. Withdrawal of life support was a profound life-and-death decision which should have been determined by the High Court. The local authority’s consent under s 33 was therefore an inappropriate exercise of its powers.
3. Fact-finding. The court applied the balance of probabilities, taking inherent probabilities into account, following Miller v Ministry of Pensions [1947] 2 All ER 372 and Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35. It applied the R v Lucas [1981] QB 720 approach: a finding that a witness lied about one matter does not establish that the witness lied about everything, and a lie is not itself proof of guilt.
4. Welfare and special guardianship. The children’s welfare remained paramount under s 1 of the 1989 Act. Before making a special guardianship order, the court required a reliable assessment and a comprehensive support plan addressing services, support and family contact.
5. Orders. The applications to withdraw the applications for discharge of the care orders, and the discharge applications themselves, were adjourned pending psychological assessments and therapeutic work. No order was made on the mother’s contact application. Permission was granted, by consent, for the remaining children’s surnames to be changed.

The judgment describes earlier care and contact proceedings before HHJ Rundell and HHJ Plunkett, but records no appeal to the present court.