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Alec Samuels


Sidestepping court

Sidestepping court


Alec Samuels considers when a course of action relating to a child may be taken without going to court

When should a dispute between the local authority, the parents and the foster parents be taken to the judge?

Suppose a child was suffering or likely to suffer significant harm, such as violence or neglect, and they are placed in the care of the local authority as a ‘looked after’ child; then placed with foster parents – perhaps with a view to adoption.

A dispute arises between the natural parents – or perhaps the foster parents – and the local authority which proposes to take a particular course of action. When can the local authority do what it likes; and when should the matter be taken to court? 

The family court has an inherent jurisdiction to protect the child and the statutory power to intervene to safeguard and to promote the welfare of the child under section 1 of the Children Act 1989 (CA). 

Experience shows that disputes can arise over many sensitivities such as religion; adoption; registering the birth; naming the child (eg whether Adolf or Cyanide is suitable); taking the child abroad; medication and vaccinations; and sterilisation. A particular issue is whether the child should be subjected to a particular form of medical treatment; or whether it should be continued or stopped.

The judge cannot be called upon to resolve every little mundane or prosaic dispute. The question is: is the matter sufficiently grave and serious to ask the court to exercise its inherent or statutory jurisdiction; or should the local authority just go ahead with its proposed course of action?
Under a care order, the local authority has parental responsibility for the child (though the law has recently been reviewed (Re H (a child) parental responsibility – vaccinations [2020] EWCA Civ 664). 

On the vaccine issue, the judges take the view that the measles, mumps, and rubella (MMR) vaccination represents preventative healthcare and medical treatment; is not intrusive; is routine; the benefits outweigh the disbenefits; and accords with the paramount welfare of the child. 

The views of the parents and foster parents should be taken into account; and those of the child if sufficiently mature. Vaccination is not a grave and serious matter justifying judicial involvement and the local authority should proceed with allowing the child’s vaccination.

The parents and foster parents may seek a judicial remedy if dissatisfied with '¨the local authority but they probably wouldn’t obtain leave to proceed. The advice and guidance now given by Public Health England is that vaccination is not compulsory but is in the best interests of the child despite possible objections. 

Most of us remember Dr Andrew Wakefield who claimed the MMR vaccination causes autism and should not be used; claims which were rejected by the medical profession. He was later struck off by the General Medical Council.

In other cases, the matter may be a private law dispute – a dispute between the parents who may be separated or divorced and not involving the local authority. Both parents enjoy parental responsibility but each of them can act individually under section 2(7) of the 1989 Act.

The same principles apply as in public law cases, namely the inherent jurisdiction of the judge and the statutory power to act if the matter is grave and serious. 

Solicitors may find themselves in a dilemma in these types of dispute and the issue should be settled if possible. Solicitors may advise the client – whether that’s the parent, foster parent or local authority, for example – that the matter is not sufficiently grave and serious and they should go ahead without going to the judge; but ultimately find that the matter should have gone to the judge. Then they face criticism. 

Or the solicitors may '¨advise the client that the '¨matter is sufficiently grave and serious and should take it to the judge – only to face criticism from the judge that the matter should not have been brought to court. 

It is a matter of judgement. Child matters must be '¨judged by the best interests '¨of the child, which is the '¨guiding principle. Solicitors will act sensibly, reasonably and fearlessly in advising as they think right.  

Alec Samuels is a barrister