"The family court: Knowing when to keep out of it"

By Lucia Johnson As family lawyers we see the court making crucial decisions which have a huge impact on people's personal lives on a daily basis. Sometimes, the decisions don't seem right and they are appealed. What happens less often and therefore comes as more of a surprise, is the court deciding that it should not be making a decision at all. This is exactly what happened in RE: E (A Child) (Medical Treatment) (2016) [EWHC 2267] (Fam).

In this case a 2 year old in the care of his maternal aunt was brought to hospital in a 'near death' condition. Urgent neurosurgery was undertaken. He was later found to have suffered no less than 75 marks, bruises and lesions on his body. He was therefore discharged into the care of specialist foster carers where he thrived and very fortunately appeared to be suffering no neurological deficit. The medical advice suggested that the child required a plate to cover the deficit in his skull (a cranioplasty). The advantages of this procedure for the child were, at that stage, cosmetic and psychological but carried significant risk. There was, crucially, no urgency for the procedure as the affects of not having the procedure would not show for another five to 10 years. The court therefore declined to make an order ruling that, as there was no particular urgency, it was inappropriate and wrong as a matter of principle for a judge to make a decision that ought to be left to the child's future long term carers. The judge held that as the decision could be left, it should be left, to whoever would be entrusted with that child's long term care. The judge was mindful that the decision was not of "magnetic importance" for the child and therefore conscious of the need for input from the child's future carers. The judge also stated that the hunt for future carers was unlikely to be adversely affected by a deferred decision. This non-evasive decision is a staunch reminder to us of the no order principle (s1.(5) Children Act 1989) which tells us that the court shall not make an order unless it considers that doing so would be better for the child than making no order at all.

The words of the President of the Family Division “Judges do not necessarily know best” is a recognition by the courts that the law and judges are not infallible and as practitioners we should sometimes stop to think about the gravity of the decision we are asking the court to make and whether the decision could and should be made by someone else later on when considering a child’s welfare.

If you have a children case you need help with, or require any advice on family cases, please contact the family team on 020 8885 7936 or family@wilsonllp.co.uk