A case of very great sadness and tragedy

Family Law|June 14th 2016

“There’s no tragedy in life like the death of a child.”

– Dwight D. Eisenhower

I just wanted to say a few words about London Borough of Brent v C, a case I mentioned on Twitter the other day. As I said then, the case was extremely sad, demonstrating once more the difficult decisions that regularly come before our family court judges.

The case concerned applications by a local authority for declarations as to the medical treatment of a child with a terminal illness. On the 28the of April the applications went before Mr Justice Holman in the High Court, who described the background thus:

“The case is one of very great sadness and tragedy. At the age of 13, the mother conceived a child. The father was about the same age. The mother does not know the name or identity of the father, other than his first name. Soon after the conception, the father returned to live abroad. The mother did try to find him there but was not successful. It is unlikely that he even knows that he fathered a child.”

But that was only the beginning of the tragedy. The mother gave birth to the child when she was 14, almost five years ago. Mr Justice Holman takes up the story again:

“Even before the birth, the mother made clear to social workers and others that, in view of her own very young age, she felt it better for both him and herself that she have no contact or involvement with him at all and that he should be adopted. She has never wavered in that decision and view. Apart perhaps from the most immediate aftermath of the birth itself, she has never held him, nor seen him, nor wished to do so. She agreed with the local authority that he should be accommodated under section 20 of the Children Act 1989, and he was placed within days of his birth with the foster mother with whom he still lives. The love and care which the foster mother has given to him in the circumstances that I will shortly briefly describe, have been described as ‘exemplary’ and are beyond praise. After the required six weeks had elapsed after [the child’s] birth, the mother signed documents consenting to his placement for adoption and to his adoption. The local authority began to investigate potential adopters and narrowed their list down to two families. Then the tragedy began to unfold.”

Mr Justice Holman continued (I make no apologies for the lengthy extracts from his judgment):

“When [the child] was about six months old, his foster mother, and then his GP, began to realise that he was not developing normally. Extensive investigation was undertaken, both at his local hospital and at Great Ormond Street Hospital for Children. For the purposes of this judgment, I can fast-forward and summarise the outcome. He is 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. That he has survived to almost five is a tribute to modern medical science and the devoted care he has received from his foster mother and the many doctors and nurses who have been, and are, involved in his care.”

Obviously, the diagnosis stopped the adoption process. Eventually, in October last year the local authority commenced care proceedings, so that it would not be necessary for the mother alone to make decisions on behalf of the child. Then, in February this year, the local authority applied to the court for declarations as to the child’s future medical treatment and, specifically, the management of his “inevitable and increasingly approaching death.”

The mother and the child’s guardian made claims against the local authority that the history of the matter involved breaches of the human rights of both the child and the mother, for which the mother claimed damages. The local authority admitted that they erred in not applying for a care order sooner, but Mr Justice Holman found that they had made no error in the actual decisions that they had made for the care and welfare of the child. A declaration was made that they had breached the child’s rights, but thankfully the mother decided not to proceed with her claim for damages.

As to the issue of the child’s medical treatment, the mother took no part. The prognosis was that the child would die within months. He was unable to speak, was blind and was unable to support or feed himself. Mr Justice Holman made the care order and set out an emergency care plan for the child’s “terminal palliative care, and ultimate death, to ensure the least pain and discomfort and maximum dignity”.

Mr Justice Holman concluded his judgment with some remarks about the three main people in “this tragic story”: the mother, the foster mother, and the child. As to the mother, he said that she had made “a courageous decision” that she could not offer the child a proper home or appropriate care. As to the foster mother he said:

“I have already described her as being beyond praise. For several years now, she has had to anticipate the inevitable death of this child to whom she has devoted so much and whom she loves so dearly. His death remains certain and closer, but the timing of it is still very uncertain. I have the utmost confidence that she will do everything in her power to provide him with love and care to his last breath; but my heart goes out to her in her task.”

And finally, as to the child he said:

“It was his tragic destiny that his life would be short and of limited quality. He has not known the joys of childhood that normal healthy toddlers and young children know. However, he has known love and devotion and has been enabled to maximise what his one life could provide. It is my sincere and confident hope that, when the time comes, it will end with the least pain and discomfort and the maximum dignity possible.”

The full report of the case can be read here.

Image ‘Tragedy’ by Clyde Adams III via Flickr under a Creative Commons licence

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