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

Liverpool City Council has applied to the High Court to exercise its inherent jurisdiction to declare that it would be lawful for the three year old subject child, VW, to undergo cranio-facial surgery.

VW is a looked after child in long term foster care, a final care order having been made on 9 February 2024. The Respondents are his mother, VWM, and father, VWF. The NHS Trust which would be responsible for the proposed surgery is Alder Hey Children’s NHS Foundation Trust (“the Trust”).

I listed the case for a hearing on a narrow preliminary issue, namely whether the application was necessary and should be permitted to proceed. The Local Authority responded to an initial question from me stating its case that the application was necessary and appropriate. I have not joined the child in these proceedings but invited his guardian from the public law proceedings to attend to assist. She has instructed Ms Schofield for whose attendance I am grateful. Were the application to have proceeded I would have considered joining the child as a party.

I have been provided with correspondence from Mr de Gea Rico, Consultant Craniofacial and Maxillofacial Surgeon and from Mr Chris Parks, Consultant Paediatric Neurosurgeon, both from the Trust. I also have a witness statement from a social worker.

I have made a Transparency Order even though there was no attendance by any reporter at the hearing. It permits the naming of the clinicians. This is not a controversial case.

Due to a genetic condition, VW has three fused skull sutures. As a result he is at risk of suffering raised intracranial pressure and has a distorted skull. The recommended treatment is cranio-facial surgery. Mr de Gea Rico has written to VW’s GP on 17 July 2025 confirming the diagnosis which is called Mercedes-Benz craniosystosis and recommending the said surgery. He has seen VW in the presence of his biological parents and foster carers. He noted that VW had global developmental delay and a Chiari malformation. He wrote that the treatment options were “wait and watch” which would involve intervention only when there is a high risk of intracranial pressure developing, or proactive surgery ideally performed before VW is aged three to three and a half years. He is now three years and one month old.

Mr Parks endorses that view. He wrote on 24 October 2025 in support of the advice and recommendations made by Mr de Gea Rico in favour of proactive surgery not only to reduce the risk of pressure but also to normalise head shape. There are risks of bleeding, infection, further investigations and further surgery being required, and a small risk, which he put at 1 in 1000, of a “disaster” such as brain damage and death. The surgery would take most of one day. The risk with a wait and watch approach is of not catching any raised pressure sufficiently early. That is a particular risk with a child such as VW who has developmental delay which might make detecting early signs of raised pressure more difficult.

The parents are in agreement with the proposed proactive surgery as are the Local Authority. It is recommended by the treating clinicians without equivocation.

Mr Khan has referred the Court to three cases: Re C (Children) [2016] EWCA Civ 374 (“Re C”), Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664 (“Re H”), and Wirral MBC v RT [2022] EWHC 1869 (Fam) (“Wirral v RT”). I also have regard to the recent Court of Appeal judgment in J v Bath and North East Somerset Council [2025] EWCA Civ 478 (“J v Bath and NE Somerset”).

Mr Khan told the Court that the Local Authority was sufficiently concerned about the risks involved in the proposed surgery that it was anxious to have the Court’s declaration that the treatment was in VW’s best interests. Relying on Re C and Re H, the Local Authority considered that the treatment was “of such magnitude” that an application to the High Court was appropriate. Ms Powell impressed upon the Court that the mother wanted the surgery to go ahead as soon as possible. VWF told me that he fully agreed that the proposed pro-active surgery was in his son’s best interests.

Children Act 1989 (“CA 1989”) s33(3) and (4) provide:

“(3)

While a care order is in force with respect to a child, the local authority designated by the order shall—

(a)

have parental responsibility for the child; and

(b)

have the power (subject to the following provisions of this section) to determine the extent to which

(i)

a parent, guardian or special guardian of the child; or

(ii)

a person who by virtue of section 4A has parental responsibility for the child,

may meet his parental responsibility for him.

(4)

The authority may not exercise the power in subsection (3)(b) unless they are satisfied that it is necessary to do so in order to safeguard or promote the child’s welfare.”

S33(6) expressly prohibits a Local Authority designated by a care order from exercising its parental responsibility in certain specified ways. S33(7) imposes prohibitions, subject to conditions, on any person changing the looked after child’s surname or removing them from the jurisdiction. There are no such express prohibitions on a Local Authority or anyone else in relation to serious medical treatment.

In Re C the Court of Appeal held at [104]:

“…there is a small category of cases where, notwithstanding the local authority's powers under section 33(3)(b) CA 1989, the consequences of the exercise of a particular act of parental responsibility are so profound and have such an impact on either the child his or herself, and/or the Article 8 rights of those other parties who share parental responsibility with a local authority, that the matter must come before the court for its consideration and determination.”

In Re H at [26] and [27] the Court of Appeal held:

“[26] On a strict reading of s.33(3)(b), and subject only to the exceptions already highlighted, the extent to which a local authority may exercise its parental responsibility is unlimited, provided that it is acting in order to safeguard or promote the welfare of the child in its care.

[27] However, whilst that may be the case when considering the section in isolation, local authorities and the courts have for many years been acutely aware 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) to override the wishes or views of a parent. Such decisions have chiefly related to serious medical treatment, although in Re C (Children) [2016] EWCA Civ 374; [2017] Fam 137 (Re C), the issue related to a local authority's desire to override a mother's choice of forename for her children. The category of such cases is not closed, but they will chiefly concern decisions with profound or enduring consequences for the child.”

And at [30]:

“In Re C therefore it was held that:

i)

Certain decisions are of such magnitude that they should not be determined by a local authority without all those with parental responsibility having an opportunity to express their view to a court as part of the decision-making process;

ii)

Section 100 CA 1989 is available to a local authority in serious medical treatment cases because it is not seeking to confer a power on itself; the High Court is instead being asked to use its inherent jurisdiction to limit, circumscribe or sanction the use of power which the local authority already has by virtue of section 33(3)(b);

iii)

As the section provides, leave to apply can only be granted where the court has reasonable cause to believe that, if the inherent jurisdiction was not exercised with respect to the children, they would be likely to suffer significant harm.”

In J v Bath and NE Somerset, King LJ commented on these two previous cases in both of which she had given the lead judgment:

“[55] The judge focused her analysis at paragraph 31 of her judgment by reference to the cases of Re C and Re H namely as to whether 'the decision that the LA is being asked to make under s 33(3)(b) is "of such magnitude" that it cannot be made by the LA, but rather must be made by the Court'. With respect to the judge that in my view is a false comparator. Those cases relate to issues which represent such a serious invasion of the Article 8 rights of parents who share parental responsibility with the local authority, or put another way are 'of such magnitude', that the local authority should not exercise their statutory power to limit the parents' right to exercise their parental responsibility without the parents first having the opportunity to express their views to a court.

[56] Those cases are 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.”

In Wirral MBC v RT, the Court was concerned with a major operation proposed for a looked after child where the views of the parents could not be ascertained. MacDonald J considered it appropriate in those circumstances that the Local Authority had brought the application before the Court.

Here, 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.

I do not wish to imply that the position would be different were the treatment decision about withholding or withdrawing life sustaining treatment - that is not an issue I have to determine - but it is not that kind of treatment decision.

There is no need for the High Court exercising its inherent jurisdiction to decide whether serious medical treatment is in the best interests of a looked after child under a final care order where, as in the present case:

As King LJ has made clear in her short additional judgment in J v Bath and NE Somerset, Re C and Re H concerned the exercise of a Local Authority’s power under CA 1989 s33(3)(b). King LJ’s comments at para. 30(i) of Re H apply to the exercise of that power and do not apply where the Local Authority is not seeking to exercise the power and there is no profound or serious interference with the Art 8 rights of the parents (or the child).

In my judgement, the application in this case is unnecessary and the court does not need to enquire as to VW’s best interests or to make a declaration. The clinicians can proceed in full confidence that they have the consent necessary to perform the surgery on VW. 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.

I understand the anxieties within the Local Authority but unnecessary applications cause delay for the child who may, as here, require the proposed treatment as soon as possible, and they take up resources which could be usefully deployed elsewhere.

Exercising the Court’s case management powers, having identified and determined a preliminary issue of whether the application is needed and should proceed, I dismiss the application. I emphasise that I do so not because the Court considers that the proposed operation is not in VW’s best interests but because the application should not have been brought.

I wish VW and his parents, and all those concerned with his care, the very best for the major surgery which lies ahead.