Wirral Borough Council v NT

Serious medical treatment for a child in local-authority care should not ordinarily be authorised solely through the local authority’s parental responsibility under section 33 of the Children Act 1989. Where treatment is grave or serious, the court should consider the decision under the inherent jurisdiction, ensuring that those with parental responsibility have the opportunity to express their views.

The court must assess the child’s best interests in the widest sense. It must identify and balance the factors that genuinely matter on the particular facts, including the benefits and risks of treatment, the strong but rebuttable presumption in favour of preserving life, and any relevant wishes and feelings. Medical evidence is important but does not determine the outcome.

NT was a premature six-day-old infant with persistent abdominal distension and suspected bowel obstruction. Medical evidence indicated that urgent laparoscopic surgery was required to investigate and, if necessary, repair the obstruction, or treat another identified cause. Delay risked bowel perforation, overwhelming infection and death.

The mother was detained under the Mental Health Act 1983 and her capacity to make decisions for NT remained to be determined. The putative father could not be contacted and it was unclear whether he had parental responsibility. The local authority had initially issued care proceedings, but the High Court was asked to grant permission to invoke the inherent jurisdiction and determine whether surgery was in NT’s best interests.

1. Serious medical treatment. Bowel surgery on a premature six-day-old infant with significant complications was plainly serious medical treatment. Following Re H (A Child)(Parental Responsibility: Vaccination) [2020] 2 FLR 753, the local authority should not determine such a matter alone under section 33(3)(b) of the Children Act 1989. The High Court’s inherent jurisdiction was appropriately invoked, and permission was granted under section 100 because, without its exercise, NT was likely to suffer significant harm.
2. Best interests. Applying Re E and Another (Minors: Blood Transfusion) [2021] EWCA Civ 1888, the court had to assess NT’s best interests in the widest sense. It began with the strong but rebuttable presumption that it was in NT’s best interests to remain alive. The court was required to identify the factors that mattered on the particular facts, give each proper weight and balance them. The medical evidence carried significant weight, but the court was not bound by it.
3. Application to NT. The risks of non-treatment included bowel perforation, overwhelming infection, septic shock and death. Those risks were increased by NT’s prematurity and fragility. The benefits of surgery before perforation occurred significantly outweighed the risks of surgery and general anaesthesia. NT was too young to express views, but the court considered that treatment directed to preserving his life was consistent with his interests.
4. Parental objections, even if made, could not alter the conclusion on the evidence. The court had regard to the observation in NHS Trust v MB and Others [2006] EWHC 507 (Fam) that parental views are relevant only insofar as they may illuminate the quality and value of the parent-child relationship, rather than the objective best interests of the child.
5. Permission to invoke the inherent jurisdiction was granted and declarations were made that it was in NT’s best interests to undergo laparoscopic surgery under general anaesthesia to investigate and treat the suspected obstruction, or another cause of his symptoms if identified. The care proceedings were remitted to District Judge Cuddy.

First-instance decision. The care proceedings were remitted to District Judge Cuddy for further case management.