Re S (Inherent Jurisdiction: Transgender Surgery Abroad)

A local authority may invoke the inherent jurisdiction in respect of a child only within the limits imposed by Children Act 1989, s 100. The statutory gateway remains relevant throughout the proceedings. The court should exercise the jurisdiction only where a likelihood of significant harm is proved and the desired result cannot be achieved through an available statutory order. The child’s welfare remains paramount. Legality and consent may be relevant, but they are subordinate to a comprehensive welfare assessment. Where a local authority accepts that it cannot prove its case, permission to withdraw should be granted. Costs may be ordered where the authority has acted unreasonably, including by pursuing subordinate issues while losing focus on significant harm and welfare.

A local authority applied under the inherent jurisdiction to prevent Sam, aged 15 when proceedings began, from travelling abroad for a double mastectomy. Permission had been granted urgently under s 100 of the Children Act 1989, and proceedings continued while issues concerning the legality of the surgery abroad and the validity of Sam’s and his parents’ consent were investigated.

Shortly before the final hearing, the local authority accepted that it could not prove either issue and applied to withdraw. The application was unopposed. Sam and his parents sought costs, alleging that the authority had acted unreasonably. The court addressed the general principles governing s 100 applications, withdrawal and costs.

1. Withdrawal. The local authority’s application fell within the first category identified in GC v A County Council and Others [2020] EWCA Civ 848, namely a case in which the authority could not satisfy the relevant threshold. The withdrawal application therefore had to succeed. Permission to withdraw was granted and continuing orders were discharged.
2. Inherent jurisdiction. Section 100(4) of the Children Act 1989 requires the court to refuse leave where the result sought can be achieved through an order which the local authority is entitled to seek under the statutory scheme. The authority’s preference not to apply for a care order is irrelevant. The inherent jurisdiction cannot be used to avoid the statutory structure.
3. The requirement of reasonable cause to believe that the child is likely to suffer significant harm must continue to inform the substantive proceedings and the final decision, not merely the initial grant of leave. The court should not impose a restriction on action which would otherwise be permitted unless a likelihood of significant harm is proved. The approach should not differ from that applicable to the threshold criteria for future harm under s 31 of the Act.
4. The child’s welfare is paramount under the inherent jurisdiction. Issues such as legality and consent may be relevant, but the court must conduct a comprehensive and holistic assessment of all relevant factors. The welfare checklist in s 1(3) is likely to assist, although it is not statutorily required.
5. The observations on the operation of s 100 were expressly described as informed commentary because the substantive issues had not been contested or determined. In the circumstances, the court would have required strong evidence before finding that the proposed surgery abroad was likely to cause significant harm or was contrary to Sam’s welfare.
6. Costs. The applicable test was whether the local authority had acted unreasonably. The authority had lost focus on significant harm and welfare and had become fixated on the subordinate issues of consent and legality. By December it should have withdrawn. That conduct was unreasonable and justified costs orders for Sam and both parents in respect of the final hearing.