Tim Parker instructed by the children’s guardian in claiming declarations against the LA and IRO



Human Rights Acts Declarations Made Against Local Authority & Independent Reviewing Officer

This is a case where a child had been accommodated pursuant to s20 Children Act for his entire life. The local authority (“LA”) did not issue proceedings until he was four and the independent reviewing officer (“IRO”) had not taken steps to bring his case to the attention of the Court. Tim Parker was instructed by the children’s guardian in claiming declarations against the LA and IRO.

The mother gave birth when she was 14. The child is now almost five. Even before the birth, the mother made clear that he should be adopted. She agreed with the LA that he should be accommodated under section 20 of the Children Act 1989. After the required six weeks had elapsed after C’s birth, the mother signed documents consenting to his placement for adoption and to his adoption.

When C was about six months old he was positively diagnosed as suffering a known, but rare, inherited disorder, which progressively destroys the nerve cells in the brain and spinal cord, and which, in infants, inevitably leads to an early death. He was initially expected only to live for about two years.

The emergence of this diagnosis inevitably stopped the anticipated progress towards adoption, and frustrated any plan of adoption. It meant also that numerous decisions and consents were required for progressively more invasive and significant medical treatment. Although the mother had said that she did not wish to be involved with the child at all, she was the only person with parental responsibility for him, so the local authority frequently approached her for the required consents. It was not until October 2015, when C was almost four and a half years old, that the LA first commenced any legal proceedings. They then, belatedly, as they now admit, applied for a care order and first obtained an interim care order.

More recently, in February 2016, they issued a freestanding application, for which the court gave the required permission, for declarations under the inherent jurisdiction of the High Court as to future medical treatment and, specifically, the management of C’s inevitable and increasingly approaching death.

During the care proceedings the children’s guardian issued a claim that both the LA and IRO had acted incompatibly with C’s human rights. Both the LA and IRO conceded breaches and the Court made declarations accordingly. The case highlights the now well- established requirement of the LA promptly to issue proceedings where a child is to be accommodated by them. However it is also the professional duty of the IRO to ensure that the LA takes this step; IROs must use the statutory powers given to them to refer cases to LA legal departments or CAFCASS.

The judgment of Mr Justice Holman appears at [2016] EWHC 1335 (Fam) and can be read here.

Featured Counsel

Tim Parker KC

Call 1995 | Silk 2022

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