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

Summary

This case was brought by Liverpool City Council for a declaration that it would be lawful for a three year old child (VW, a looked after child in long term foster care) to undergo cranio-facial surgery. The case was listed for a preliminary issue, namely whether it was necessary for the application to have been brought and whether the application should be permitted to proceed in circumstances where the treatment was unanimously recommended by the treating team and was agreed by VW’s parents and the local authority as being in VW’s best interests.

The local authority’s justification for bringing the application was that they were sufficiently concerned about the risks of the treatment that it was anxious to have the Court’s declaration that the treatment was in VW’s best interests. In making this submission, the local authority relied on the well-known Court of Appeal decisions Re C (Children) [2016] EWCA Civ 374 (“Re C“), Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664 (“Re H“), which establish the proposition that some decisions are of such magnitude that it would be wrong for a local authority to use its power under s.33(3)(b) of the Children Act 1989 to override the wishes or views of a parent.

In his consideration of the issue to be determined, Mr Justice Poole  examined J v Bath and North East Somerset Council [2025] EWCA Civ 478 in which Lady Justice King made the important point that Re C and Re H were cases “about the profound impact upon the Article 8 rights of a parent who continues to share parental responsibility with a local authority which has no Article 8 rights.”  As Mr Justice Poole noted on the case before him

the parents’ views are known and the Local Authority is not seeking to limit or restrict the exercise of the parents’ parental responsibility. There is no need to do so in order to safeguard or promote the child’s welfare. The parents have been engaged in the decision-making process. They have capacity to exercise their parental responsibility in respect to serious medical treatment for their son. They fully understand the risks and benefits involved and they support the proposed surgery. The Local Authority also supports the proposed surgery. There is no debate amongst the treating clinicians – they agree that it is in VW’s best interests to undergo the surgery. The treatment, whilst serious, is not experimental or unusually risky.

In such circumstances Mr Justice Poole held that the application was not required, and that the clinicians could “proceed on the basis that they have the necessary consent to perform the surgery, and the Local Authority can have confidence that it can exercise its parental responsibility to consent to the surgery, that being in accordance with the views of the child’s parents and all treating clinicians.”

Comment

This is an important case for those concerned with the medical treatment of children who have been subject to public law proceedings, because it makes the undoubtedly correct point that ‘unnecessary applications’ cause delay for the child who are likely to required the proposed medical treatment as soon as possible. Such application also of course take up resources which could be usefully deployed elsewhere.

It is interesting to note that Mr Justice Poole at paragraph 19 stated that he did “not wish to imply that the position would be different were the treatment decision about withholding or withdrawing life sustaining treatment.” While he is clear that the treatment decision that he was concerned with was of a different kind, he must be correct that the logic of his judgment would apply equally in case concerned with the withdrawal or withholding of life sustaining treatments.