VW (Looked After Child: SMT: Need for Application), Re

A local authority does not need the High Court’s inherent jurisdiction to authorise serious medical treatment for a looked after child where it is not seeking to restrict the parents’ exercise of parental responsibility under Children Act 1989 s 33(3)(b). The application is unnecessary where the parents have capacity, understand the risks and benefits, and actively agree with the treatment recommended by the clinicians; the child lacks competence or capacity to decide; and there is no borderline or disputed clinical or parental decision. The fact that treatment is serious does not itself require a court application. Unnecessary applications may cause delay and consume resources.

Liverpool City Council sought a declaration under the High Court’s inherent jurisdiction that cranio-facial surgery for VW, a three-year-old looked after child subject to a final care order, would be lawful. The proposed surgery was recommended by the treating clinicians because of a genetic condition involving three fused skull sutures and risks of raised intracranial pressure. Both parents, the local authority and the clinicians supported proactive surgery.

The court listed a preliminary issue: whether the application was necessary and should be permitted to proceed. The central question was whether the seriousness of the treatment, without disagreement or an attempt to override parental responsibility, required the High Court’s intervention.

1. Application dismissed. The application was unnecessary and should not have been brought. The dismissal was not based on any finding that the operation was contrary to VW’s best interests.
2. Under Children Act 1989 s 33(3)(b), a local authority may determine the extent to which a parent exercises parental responsibility, subject to the statutory welfare condition in s 33(4). Section 33 contains express prohibitions on certain acts, but no equivalent express prohibition concerning serious medical treatment.
3. Re C (Children) and Re H (A Child) (Parental Responsibility: Vaccination) concern decisions of such magnitude that a local authority should not use s 33(3)(b) to override a parent’s wishes without the parent having an opportunity to express their views to a court. They do not require a High Court application whenever treatment is serious. J v Bath and North East Somerset Council confirmed that the relevant concern is profound interference with the Article 8 rights of parents who share parental responsibility with the local authority.
4. The High Court need not determine the best interests of a looked after child under a final care order where:
   • the local authority is not restricting the parents’ exercise of parental responsibility;
   • the parents have capacity and understand the risks and benefits;
   • all persons with parental responsibility agree that the clinicians’ recommended treatment is in the child’s best interests;
   • the child lacks competence or capacity to decide; and
   • there is no borderline decision or uncertainty among the clinicians or those with parental responsibility.
5. Wirral MBC v RT was materially different because the parents’ views could not be ascertained. Here the parents were engaged in the decision-making process and fully supported the surgery. The clinicians’ recommendation was unequivocal, and the treatment was serious but neither experimental nor unusually risky.
6. The clinicians could proceed with the necessary consent, and the local authority could exercise its parental responsibility consistently with the parents’ wishes and the clinicians’ recommendations.