When is court approval required for a looked after child's medical treatment?

Liverpool City Council's High Court application for a declaration authorising surgery on a three-year-old looked after child was dismissed in December 2025 as “unnecessary”.

In Re VW (Looked After Child: SMT: Need for Application) [2025] EWHC 3298 (Fam), Mr Justice Poole provided a practical checklist to help local authorities and social care professionals determine when a court application is, and is not, required before proceeding with serious medical treatment for a looked after child.

Cranio-facial surgery for a looked after child: The facts of Re VW

VW, a three-year-old boy subject to a final care order and placed in long-term foster care, had a genetic condition causing three fused skull sutures. His treating clinicians recommended cranio-facial surgery, ideally before he reached three-and-a-half years of age, to reduce the risk of raised intracranial pressure. The risks included bleeding, infection, further surgery, and a 1 in 1,000 risk of a serious outcome such as brain damage or death.

Both parents supported the surgery, as did the local authority. Nonetheless, the local authority applied to High Court, stating that it was sufficiently concerned about the risks involved in the proposed surgery and wanted judicial confirmation that the treatment was in VW's best interests. Relying on the cases of Re C (Children) [2016] EWCA Civ 374 (“Re C”) and Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664 (“Re H”), the local authority considered that the treatment was “of such magnitude” that an application to the High Court was appropriate. However, the High Court disagreed and declared the application unnecessary.

When can a local authority override parental responsibility? The law explained

A local authority acquires parental responsibility for a child while a care order is in force under section 33(3)(a) of the Children Act 1989. It can also limit the exercise of parental responsibility by others, including parents, under section 33(3)(b). 

However, established case law, principally Re C and Re H, recognises 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. These cases principally concern serious medical treatment, although in 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 cases in which a local authority should not exercise its powers under s.33(3)(b) is not closed, but they will chiefly concern decisions with profound or enduring consequences for the child.

Further, in Wirral MBC v RT [2022] EWHC 1869 (Fam), 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.

When a court application for serious medical treatment for a looked after child is not required: Re VW explained

Mr Justice Poole found that VW’s case was entirely distinguishable from the established authorities. VW’s parents had capacity, fully understood the risks and benefits of the treatment, and supported the surgery. The surgery which was not experimental or unusually risky and there was no uncertainty between the treating clinicians about it. Further, the local authority was not trying to limit or restrict the exercise of the parents’ parental responsibility – on the contrary, the local authority and the parents agreed about the proposed treatment. 

The judge therefore dismissed the local authority’s application on the basis that it was unnecessary. He confirmed that the clinicians could proceed with confidence that the necessary consents were in place, and that the local authority could exercise its parental responsibility consistently with the parents' wishes and the clinical recommendation. 

The judge added a pointed observation: unnecessary court applications cause delay for children who may need treatment urgently, and consume resources that could be more usefully deployed elsewhere. In VW's case, VW was already three years and one month old at the date of the hearing – the window for optimum treatment was diminishing. 

The five-factor test: when is a court application required for a looked after child's medical treatment?

The judgment sets out five factors that, taken together, indicated court involvement was not required in this case. Social care professionals should work through each before considering an application in future matters:

1. The local authority is not seeking to restrict the exercise of parental responsibility by the parents under section 33(3)(b) of the Children Act 1989.
2. The parents have capacity to exercise their parental responsibility and understand the risks and benefits of the proposed treatment.
3. All those with parental responsibility actively agree that the proposed treatment, as recommended by the treating clinicians, is in the child's best interests.
4. The child does not have competence or capacity to make their own decision about the treatment.
5. There is no borderline or disputed decision – no uncertainty or difference of opinion amongst treating clinicians or those with parental responsibility.

Where all five conditions are met, a court application is very unlikely to be necessary.

What local authorities should do now: Key lessons from Re VW

This judgment delivers a clear and timely message to local authorities and social care teams: going to court is not automatically the "safe" option when a looked after child requires serious medical treatment. There are several important lessons to take away.

• Do not conflate "serious" with "disputed": The seriousness of proposed treatment does not, of itself, justify a court application. The relevant question is whether there is a genuine conflict – between clinicians, between those with parental responsibility, or between the local authority and the parents. If there is none, the case for court involvement is very difficult to sustain.
• Understand the purpose of the case law: Re C and Re H protect parents whose Article 8 rights risk being overridden by a local authority acting unilaterally. They are not a general requirement to seek judicial approval for all significant medical decisions concerning looked after children. Misreading them, as occurred here, risks unnecessary delay to treatment.
• Apply the checklist proactively: The five factors identified by Mr Justice Poole should be embedded into local authority practice. Before any application is made, social workers, legal teams and senior managers should work through each factor systematically. If all five are satisfied, court involvement is very likely to be unnecessary and potentially harmful to the child's interests.
• Unnecessary applications have real consequences: In VW's case, the surgery was time-sensitive and every week of delay carried clinical risk. Court applications also carry significant costs. Risk management strategies that default to court involvement without proper analysis should be reviewed and updated in light of this decision.

Local authorities should review their internal thresholds and policies for making applications in serious medical treatment cases and ensure that this judgment is reflected in their decision-making frameworks.