Re S
| Jurisdiction | England & Wales |
| Neutral Citation | [2023] EWHC 347 (Fam) |
| Year | 2023 |
| Court | Family Division |
2023 Jan 30, 31; Feb 1
Children - Care proceedings - Inherent jurisdiction - Local authority seeking to invoke inherent jurisdiction to prevent young person travelling abroad for gender reassignment surgery - Local authority conceding inability to discharge evidential burden and seeking permission to withdraw application - Whether permission to be granted - Whether authority’s conduct unreasonable - Whether costs to be awarded against authority -
The local authority applied for leave to invoke the inherent jurisdiction of the High Court under section 100 of the Children Act 1989F1 in order to prevent a young person, then aged 15, from travelling to another country in order to undergo gender reassignment surgery. The local authority was invited to consider: (i) the basis upon which leave was granted to make the application; (ii) whether, in the circumstances that were now known, section 100(4) was satisfied; and (iii) whether the application engaged section 100(2)(d). As a result, on the first morning of the five-day hearing the local authority applied pursuant to FPR r 29.4F2 to withdraw the application on the basis that, on the evidence before the court, the authority could not discharge the burden of proving its case. The other parties did not oppose the application to withdraw but applied for their costs of the hearing against the local authority.
On the applications—
Held, granting permission to withdraw the application and making a costs order against local authority, (1) that, as the local authority’s request for leave to withdraw its application was not opposed, and had to succeed where it was accepted that it was not possible to prove the authority’s case, the court did not need to determine any of the substantive issues and any continuing orders in the proceedings would be discharged (post, para 36).
(2) That with regard to the costs applications, it was agreed that costs would only be awardable if the court concluded that the local authority had acted unreasonably in its conduct of the proceedings; that the criticisms levied at the local authority’s conduct of the proceedings were, in general, well made; that it was a matter of particular concern that from the start of the case, and throughout, the authority’s approach had lacked the necessary focus on the twin lodestars of “significant harm” and “welfare”; that to proceed when, as was conceded, there was no evidence to establish a likelihood of significant harm or that to undertake the operation as planned was contrary to the young person’s welfare, had been unreasonable; and that that conclusion was sufficient to justify a costs order for all three claiming parties with respect to the final hearing (post, paras 37,41,42,43).
Per curiam. While not arising from contested proceedings, and therefore only informed commentary rather than any more authoritative statement of law or practice, the following may be a helpful guide in future cases: (a) Although the only direct reference to a need to evaluate “reasonable grounds to believe that the child is likely to suffer significant harm” occurs in section 100(4) of the Children Act 1989 with respect to the initial stage when the court is considering whether to grant leave to apply under the inherent jurisdiction, the need to continue to have regard to whether there is a likelihood of significant harm must surely continue throughout the substantive proceedings and be a requisite factor in determining whether to exercise that jurisdiction by granting the order sought by the local authority at a final hearing. (b) To hold otherwise would be at odds with the central policy and structure of Part 4 of the 1989 Act and would allow a local authority to access the jurisdiction at a short urgent hearing on the basis of such “reasonable grounds” where, at a later hearing, when more information is available, it becomes clear that no such reasonable grounds exist. (c) There is no indication that the test of “likelihood of significant harm” in section 100 should be approached in a manner that differs in any way from the approach to the threshold criteria for future harm in section 31 and, in particular, while the court may undertake an analysis of the balance of harm as between two possible courses of action, the jurisdiction should only be exercised in favour of imposing a restriction on action that would otherwise be permitted where a likelihood of significant harm to the child is proved. (d) Although issues of legality, consent and other important matters may be relevant to a court’s ultimate decision, the child’s welfare remains the paramount consideration under the inherent jurisdiction, just as it is under the 1989 Act itself. In common with all similar welfare decisions, what is required is a comprehensive and holistic review of all of the relevant factors before determining which outcome best meets the child’s global welfare needs. In undertaking this task reference to the welfare checklist in section 1(3) of the 1989 Act is likely to be helpful, albeit that it is not required by statute (post, para 35).
APPLICATIONS
By an application issued on 20 July 2022 a local authority sought leave under section 100 of the Children Act 1989 to invoke the inherent jurisdiction of the High Court in order to prevent a young person, who was then 15 years old, from travelling abroad in order to undergo gender reassignment surgery there, namely a double mastectomy. On 22 July 2022, at an inter partes hearing, Judge A granted permission to the local authority to invoke the inherent jurisdiction and ordered that the young person was not to undergo any gender reassignment surgery without the permission of the court and that he was not to leave, or be removed from, the jurisdiction for the purpose of undergoing any surgery until further order.
In October 2022 the parents and the young person applied for the proceedings to be dismissed. Having considered the available evidence Judge A was persuaded that there remained significant gaps within the material presented by the local authority and that further disclosure or investigation was required. On that basis the application was refused and directions were given for a final hearing in December 2022. In the event the December hearing had to be adjourned and the matter was re-listed for a five day hearing in January 2023. On the first morning of the final hearing, the court was informed that the local authority had decided not to proceed and would be asking the court’s permission to withdraw its application as required under FPR r 29.4(2).
The matter was heard in private and the judgment is reported with permission of the judge on condition that the anonymity of the young person and his family be strictly preserved.
The facts are stated in the judgment, post paras 1,3–20.
Andrew Norton KC and junior counsel (instructed by a firm of solicitors) for the local authority.
Richard Jones and Melissa Elsworth (instructed by Payne Hicks Beach LLP) for the mother.
Sharon Segal and Niamh Daly (instructed by Goodman Ray) for the father.
Deirdre Fottrell KC and junior counsel (instructed by a firm of solicitors) for the child.
The court took time for consideration.
1 February 2023. SIR ANDREW MCFARLANE P handed down the following judgment.
1 By an application made on 20 July 2022 a local authority applied for leave to invoke the inherent jurisdiction of the High Court in order to prevent a young person, Sam, who was then aged 15 years, from travelling to Country X in order to undergo surgery, namely a double mastectomy, there. Sam [not his real name] and his parents [“mother” and “father”] were all born in, and remain citizens of, X, however the family have lived in England for many years and have the right to remain here. Sam, who is now aged 16, was assigned to the female gender at birth, but has lived socially as a boy for some years. He does not regard himself as a transsexual and has been referred to throughout these proceedings as “he/him”.
2 The ability of a local authority to make an application under the inherent jurisdiction is strictly prescribed by Children Act 1989, section 100:
“100 Restrictions on use of wardship jurisdiction
“(1) Section 7 of the Family Law Reform Act 1969 (which gives the High Court power to place a ward of court in the care, or under the supervision, of a local authority) shall cease to have effect.
“(2) No court shall exercise the High Court’s inherent jurisdiction with respect to children— (a) so as to require a child to be placed in the care, or put under the supervision, of a local authority; (b) so as to require a child to be accommodated by or on behalf of a local authority; (c) so as to make a child who is the subject of a care order a ward of court; or (d) for the purpose of conferring on any local authority power to determine any question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.
“(3) No application for any exercise of the court’s inherent jurisdiction with respect to children may be made by a local authority unless the authority have obtained the leave of the court.
“(4) The court may only grant leave if it is satisfied that— (a) the result which the authority wish to achieve could not be achieved through the making of any order of a kind to which subsection (5) applies; and (b) there is reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm.
“(5) This subsection applies to...
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