This issue recently gave rise to a novel point of law, which was considered by the Designated Judge at Canterbury, sitting as a Deputy High Court Judge.
In most cases, if parents refuse to consent to an adoption medical there will be an interim public law order in place and the court will be able to make a direction under S38(6). However, if no interim public law order is in place, the case law and statutory provisions create a Gordian knot. This needs to be unpicked with care.
Under Section 22(6) Adoption and Children Act 2002 the court may make a direction for “the medical or psychiatric examination or other assessment of the child”. However, S22(6) only applies where an application for a placement order has been made and where no interim care order is in place.
Before the LA can issue an application for a placement order, the matter must be referred to the Agency Decision Maker. However, one of the statutory requirements for making such a referral is that the child in question must have been medically examined and a ‘child’s health report’ must be supplied to the ADM [Adoption Agency Regulations 2005 Reg 15].
Under Section 38(6) of the Children Act 1989, the court may make a direction for “the medical or psychiatric examination or other assessment of the child”. This provision mirrors S22(6) ACA 2002. However, S38 (6) only applies where there is an interim care or interim supervision order in place.
By analogy with settled case law in relation to paternity blood testing, the court cannot make an interim care order solely for the purpose of giving itself jurisdiction under S38(6) [In Re O and J (Paternity: Blood Tests)  1FLR 418 Wall J concluded that to make an ICO solely for the purpose of giving the court jurisdiction to direct that there should be paternity blood tests and thereby circumventing the mothers’ refusals, would be “wholly inappropriate”. Note that unlike Ss 22(6) and 38(6) CA’89, the Family Law Reform Act 1969 gave the parent the right to refuse consent for paternity testing. Wall J ruled that because the statute comprehensively dealt with the issue, it ousted the inherent jurisdiction of the court. The FLRA’69 was amended following this decision so that the court can now overrule parental objection].
Under Section 8 Children Act 1989 the court can give directions for the purpose of determining a specific issue which has arisen in connection with any aspect of parental responsibility for a child.
This is usually a private law remedy but in some circumstances, the local authority can apply for a specific issue order (subject to obtaining the leave of the court). Where medical treatment is in issue between parents and local authorities, there is conflicting case law as to the circumstances in which it may or may not be appropriate to invoke Section 8.
Under the inherent jurisdiction of the High Court, the High Court does retain residual inherent powers. Those powers are significantly restricted by S100 CA89. However, in appropriate circumstances, the High Court can invoke its inherent jurisdiction to direct the medical treatment/ assessment of a child.
In the commentary to S100, the editors of the Red Book have addressed the issue of ‘specific issue’ versus ‘inherent jurisdiction’ in relation to medical matters involving children:
“… in cases involving children, a distinction may need to be made between cases where the dispute is between parents, and relates to the administration of ordinary medical treatment which is neither life threatening nor controversial, and those cases which raise issues of public policy. In the former category of cases, an application for a specific issue order may be appropriate provided the child is not in care and the local authority is not seeking to acquire parental responsibility. In the latter case the inherent jurisdiction of the court should be invoked.” [Red Book 2015 at p721]
The Court’s Decision
The court accepted that in the absence of either interim care/ supervision orders and in the absence of an application for a placement order, there was no jurisdiction under S22(6) or S38(6). The court accepted that it would be wholly inappropriate to make an interim public law order for the purpose of acquiring jurisdiction. The court determined that carrying out an adoption medical was be in the child’s best interests and it exercised its inherent jurisdiction to overrule the objections of the parents. Accordingly, the mother was directed to make the child available for an adoption medical.