Abstract
In the Matter of M (A child) (Threshold criteria – terminal illness)
The High Court, O’Hara J
27 May 2015
Background
This case concerned Mrs B (in her early 40s) and her son M (aged 4). The identity of M’s father was unknown: Ms B declined to disclose his name but asserted that he had died of a drugs overdose after M was born. Ms B has a mild learning disability and lived in foster care from the age of 5 to 18, after which she spent some time living in supported accommodation before being admitted to a psychiatric hospital following an overdose. She remained there for approximately six years before moving to supported living accommodation and then to semi-independent living. In 2010 she became pregnant, was diagnosed with breast cancer and had a mastectomy.
After M’s birth early in 2011, Ms B was able to care for him with support from the Trust. This was successful to the extent that M’s name was removed from the Child Protection Register late in 2011. In 2013, M was assessed as having general developmental delay, with a possibility of having a long-term learning disability and speech problems. All of this led to M becoming a looked after child but remaining in the care of his mother.
At a Looked After Children meeting in 2014 it was apparent that Ms B’s health, which had been problematic for some time, was deteriorating and with her agreement M was voluntarily accommodated while she went for tests. Within a very short time she was diagnosed with terminal cancer. Since then the Trust has sought unsuccessfully to identify a family member or a friend who can look after M in the long term. M has stayed with carers since June 2014. He still sees his mother but that contact has become less frequent, in part because she does not want him to be distressed by her appearance.
The Trust issued care proceedings in December 2014, due to its concern that no one would have parental responsibility for M, and Ms B agreed to interim care orders being made. However, in February 2015 she stated that she did not want any long-term care plan for M to include adoption ‘as I am concerned about his name potentially being changed and him forgetting about me as his mother’. She added that she was fully committed to having as much contact as she could with M, depending on her health.
O’Hara J noted a complicating feature which had emerged was that Ms B had appointed a testamentary guardian, a Ms A with whom she had developed a friendship. Ms A had considered whether she could foster or adopt M and concluded that she could not but appreciated that as M’s testamentary guardian she would have parental responsibility for him after Ms B’s death. She would like to play a role in any decisions to be made about his life, for example, to ensure that he is placed with suitable foster carers and receives the religious sacraments. She envisages herself acting like an aunt to M but with the possibility of reconsidering the extent of her role if any change in her work commitments made that possible.
Submissions
Counsel for the Trust emphasised that it did not and never had suggested that the issues about M’s future care represented any attribution of fault to Ms B. She suggested that the emergence of Ms A’s position as a testamentary guardian did not fundamentally alter the position, which was that M was a four-year-old boy, with an entirely uncertain present and future, at risk of coming to significant harm. She then stated the statutory grounds for making a care order as set out in Article 50(2) of the 1995 Children’s Order. She submitted that: … without it being anybody’s fault, Ms B cannot care for her son as a result of her terminal ill-health and her combination of illnesses … further, it does not matter at what date threshold criteria are assessed. In June 2014, Ms B placed M in voluntary accommodation without an interim care order when she was too unwell to care for M. At that date she did not know that she was dying. Later in December 2014 when the Trust issued care proceedings, Ms B was still too unwell to care for him but did know that she was dying. In her February 2015 statement Ms B said that she could no longer care for M on a daily basis. That statement is correct but also reflects the true position from June 2014 onwards.
Counsel for Ms B submitted that the Trust’s application was misconceived because it was based on the misconception that nobody would have parental responsibility for M after his client’s death, whereas Ms A would in fact have that responsibility as his testamentary guardian. He further contended that Ms B was currently capable of exercising parental responsibility because she was able to make decisions about M’s welfare. He drew attention to the judgement of Thorpe J in Birmingham City Council v. D; Birmingham City Council v. M, 1 which involved two different sets of children: in one family the mother had died and the unmarried father declined any responsibility for the children; in the other family both parents were dead. The public authority which was accommodating the children applied for care orders, concerned that nobody held parental responsibility for them. In finding that the threshold criteria could not be satisfied, the judge held that ‘it would be a plain distortion of the threshold test to find some theoretical risk of harm when none in reality is discernible’. The care order provisions were not applicable.
Counsel for the guardian ad litem initially submitted that the Trust was on the wrong track by seeking a care order when it should be applying for leave under Article 173 of the 1995 Order to pursue wardship. However, the guardian later reconsidered her position to endorse the Trust’s approach, accepting that culpability is not necessary for threshold criteria to be established and because the Trust’s exercise of its duties to promote the welfare of M was not sufficient protection for him. This drew from O’Hara J the comment that: Article 173 provides that the court retains its inherent jurisdiction to make children wards of court. However, that power is not to be exercised unless the court is satisfied that the result could not be achieved other than through the exercise of the inherent jurisdiction.
Discussion
O’Hara J indicated that the real issue was the care plan – long-term foster care or adoption – but that was a matter for future debate. At this stage, the court was considering only whether the threshold criteria had been established. Noting that the statutory requirements for a care order are not couched in terms of fault – that was not a prerequisite for the making of orders – he drew attention to Re B (A child)
2
in which Lady Hale (at para 191) had stated: The harm, or the likelihood of harm, must be ‘attributable to the care given to the child or likely to be given to him if an order were not made, not being what it would be reasonable to expect a parent to give to him’… This reinforces the view that it is a deficiency in parental care rather than in parental character, which must cause the harm. It also means that the court should be able to identify what that deficiency in care might be and how likely it is to happen.
O’Hara J concluded by referring back to the reasons given by Ms B for opposing the adoption of M – that his name might be changed and that he would forget about her as his mother. On the first issue, O’Hara J acknowledged that adoption would be more likely lead to a change in his name than would be the case if he remained in long-term foster care; on the second he took the view that ‘there is little difference between the two options. Whether and for how long M will remember Ms B may be affected by the extent of his developmental delay and any disability which emerges.’ However, he considered it obvious that ‘a life story record must be prepared so that as M’s life continues he can be informed about his background. That is what happens in most cases and there are powerful reasons for it being done here.’ He suggested that ‘it would require little effort or imagination to devise a role in M’s future for Ms A through whom an appropriate and supportive memory of Ms B could be maintained’. Finally, he paid tribute to the Trust’s long and positive record of working with Ms B to help her and her son, noting that its application to the court had been made with the best of intentions and concluded: ‘It would be disappointing if a way could not be found through the differences between it and Ms B at this late stage of her life.’
Held
Trust application granted.
Comment
The critical fact is that the only surviving parent, seemingly with no relatives, is dying leaving her four-year-old child with no one who can legally undertake parental responsibility. An ancillary fact is that he has ‘been with carers’ for the past 10 months. The probability is that the Trust is working towards adoption as the preferred care plan; which in the circumstances, as far as they are known, cannot be faulted. It would have been interesting to have had more exploration of just how the facts in this case could be distinguished from those that led Thorpe J to take an alternative decision; given the availability of statuory options, wardship was a red herring; and the testamentary appointment, while offering a positive opportunity for an ongoing bridge in this child’s life, did not address the fundamental issue of legal responsibility.
It does seem an awful burden for this faultless mother to have to endure at this tragic time but perhaps if she can have confidence in the arrangements being made, and the people involved, it will make things slightly easier.