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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> G (Notice to Parents: Duty of Local Authority under s22(4) CA 1989) [2018] EWHC 3939 (Fam) (19 November 2018) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2018/3939.html Cite as: [2018] EWHC 3939 (Fam) |
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
Local Authority |
Applicant |
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- and - |
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M |
1st Respondent |
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- and - |
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F |
2nd Respondent |
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- and - |
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G (through her Children's Guardian) |
3rd Respondent |
____________________
M - Did not attend and did not have notice
F - Attended in person
Ms Maria Stanley (instructed by Cafcass Legal) for the 3rd Respondent
Hearing date: 19th November 2018
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Crown Copyright ©
Mrs Justice Theis DBE:
Introduction
(1) Should the mother be given notice of these proceedings?
(2) If so, what steps should be taken to do that?
(3) If not what, if any, order should the court make?
Relevant Background
(a) The [Local Authority] is absolved from any and all obligation to consult, refer to and or inform G's parents….in relation to any aspect of her progress, development and or wellbeing whilst she is a looked after child the court being satisfied that G's welfare makes such a declaration necessary
(b) Further, or in the alternative, the declaration set out in (a) above shall absolve the [Local Authority] of all obligations to comply with any of the duties imposed on them by, or under, the Children Act 1989 in relation to any obligation to consult, refer to and / or inform the parents. The Court being satisfied that in the exceptional circumstances of this case such failure would amount to a reasonable excuse pursuant to Section 84 Children Act 1989."
And the Court further orders that: -
The local authority shall not, unless G so consents, share with the Respondent Parents: -
(i) Any information regarding the G's gender identity whether that information comes from the Tavistock Centre, G's General Practitioner, CAMHS or any another source
Legal Framework
'The thrust of these cases is, therefore, is that the court will not be persuaded to sanction the withdrawal of information about the existence of a child from that child's parent or to dispense with service on him of proceedings in relation n to the child in anything other than exceptional circumstances where there are, as the President has put it in Re H: Re G 'strong countervailing factors'.'
'4) Before making any decision with respect to a child whom they are looking after, or proposing to look after, a local authority shall, so far as is reasonably practicable, ascertain the wishes and feelings of—
(a)the child;
(b)his parents;
(c)any person who is not a parent of his but who has parental responsibility for him; and
(d)any other person whose wishes and feelings the authority consider to be relevant, regarding the matter to be decided.'
'I respectfully agree with this decision of Bennet J. I regard its ratio as being that when an adult whose mental health is in issue has clearly expressed the wish that her nearest relative is not to be involved in decisions about her case, and it appears to the AMHP that to contradict that wish may cause the patient distress to the extent of affecting her health, the AMHP is entitled to regard consultation with the nearest relative as not reasonably practicable'.
He continued at paragraph [48]
'…Bennett J's decision does not, as I read it, depend on the sister's attitude. Instead it concentrates on the patient's wishes, her health and her Article 8 rights to a private life'.
As a result, Bean J concluded that the test was 'a subjective one, and a matter of professional judgment' (per paragraph [50]) and concluded that it was 'not reasonably practicable' within the meaning of s 11 (4) MHA 1983 for the social worker to have contacted TW's father prior to applying for her admission for treatment, therefore he refused to grant leave for the
claim to be brought in that case.
'Where a competent child refuses to allow information to be shared with their parent(s), there should be evidence that the risks of not sharing the information have been considered. Where it is thought to the in the child's best interests to share information, there should be evidence of attempts to seek a compromise. It is sometimes possible to provide parent(s) with general information about the treatment or condition as a compromise, rather than the specific details of the child's case. Where it is in the clinician's opinion that it is necessary to share information in the best interests of the competent child, against their wishes, the Caldicott Guardian should be consulted.' A Caldicott Guardian is a senior person responsible for protecting the confidentiality of people's health and care information and making sure it is used properly. All NHS organisations and local authorities which provide social services must have a Caldicott Guardian.
Guidance from the British Medical Association (BMA) dated October 2008
Submissions
(1) This application is not necessary as if she is right in relying on the analysis of Bean J in TW above the local authority have sufficient information to be able to make their own decision that it is not reasonably practicable to consult G's mother under s 22(4) about matters relating to her gender identity taking into account (i) G's wishes for her not to be informed, those wishes have been consistent for at least twelve months; (ii) G has been assessed as Gillick competent; (iii) there is evidence that informing G's mother against G's express wishes will cause G psychological harm due to the likely reaction of her mother and the enhanced anxiety that is likely to cause to G.
(2) If the application was not necessary, then G's mother's Article 6 rights are not engaged.
(3) If the court does not consider the application was not unnecessary then for the same reasons as in (1) above the court can conclude that there are exceptional circumstances that justify the court exercising its discretion not to serve the mother or give her notice of this application.
(4) The declaration sought should not be granted for the reasons outlined in (1) above. In addition, as a matter of principle and public policy, a child who is the subject of a care order should not have less rights than a child who is not subject to such an order. If G was not subject to a care order and was living at home, or elsewhere, the referral to GIDS and any consequent therapeutic assistance would be unlikely to involve G's parents, if that was contrary to her express wishes. A child should be afforded the same right to confidentiality as another child who is not subject to a care order, to suggest otherwise is an affront to public policy and in breach of the child's Article 8 right to private and family life.
Discussion and Decision
- In the event that [G] were to decide, during this process, that she wished to access the medical pathway then GIDS have advised that they would assess her capacity to consent to whichever specific treatment she decides she would like to embark upon. Part of the consent process is to consider the views of her support network as well as the capacity of her support network to understand and consent to treatment for her. GIDS indicate that if the young person is in care then a professionals meeting would be advised and the decisions would be taken by the professional network. The Local Authority would need to consent in writing to such treatment. GIDS have indicated that any person under the age of 16 years is expected to be accompanied to GIDS appointments by an appropriate adult.
- GIDS have further advised children's services that they will be led by [G], and the local authority, as to what information can be shared with her parents. They would wish to explore the information that may or may not be provided through the therapeutic process. They consider that ultimately the mother will find out and so consideration will need to be given as to how this can best be managed. Thought will also need to be given to appropriate safety plans which need to be put in place having regard to the assessed risks. It should be said that the local authority agrees with the GIDS opinion that it is likely that [G's] parents may, in due course, find out the information through their contact sessions, or because [G] has an ongoing relationship with her [sibling H]. It is the local authority's hope that during the therapeutic stage of her work with GIDS [G] can be supported in feeling able to tell her parent's in a planned way but this is something which is only likely to evolve over time and with support.'
(1) G has remained consistent that her mother should not be informed about matters relating to her gender identity. She has been assessed as Gillick competent to make that decision.
(2) There is every likelihood that if she was not subject to a care order her wishes would be respected and her mother not informed about issues relating to her gender identity, the referral to GIDs and any therapeutic treatment.
(3) The evidence available to the court regarding the history of the relationship between the mother and G, the mother's attitude and behaviour to matters relating to issues of sexuality and G's anxiety and behaviour relating to her mother's reaction and behaviour all lead to the conclusion that if her mother was informed or given notice that G would suffer psychological harm.
(1) I agree with the analysis of Ms Stanley that the provision in s 22 (4) of 'so far as is reasonably practicable' can involve a professional judgment by the local authority, in accordance with the ratio of Bean J in TW (ibid).
(2) In the circumstances of this case that can include an assessment of the child's wishes as to sharing confidential information about them, the fact that the child is Gillick competent to express those wishes and the evidence of the harm that could be caused to the child if those wishes were overridden. It is of note the local authority did not seek to take issue with this analysis and in relation to earlier decisions (such as the referral to GIDs) did not consider they had a duty under s 22 (4) to consult the parents about that.
(3) Ms Stanley accepts that this analysis of the extent of the duty under s 22 (4) would not apply to medical intervention and that an analysis of what is reasonably practicable within the meaning of s 22(4) in relation to medical intervention would be a separate analysis turning on the facts of that separate issue at that time and involving a higher threshold to that of therapeutic intervention.
(4) As a matter of public policy G should not be in a different position regarding her right to confidentiality by virtue only of the fact that she is subject to a care order.
(5) The decision of Keehan J in PD v SD (ibid) supports this analysis as confirming that the Article 8 balance fell decisively in favour of the child where the child is of an age to make their own decisions. In that case he made a declaration which would prevent the parents being given any information, including relating to medical intervention for the reasons he gave. In this case the declaration sought is limited to the therapeutic intervention, which is a matter, in my view, for the professional judgment of the local authority in considering whether 'it is reasonably practicable' to ascertain the wishes and feelings of the mother in this case.