T (Children) [2014] EWFC B116 (13 August 2014)

JUDGMENT

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of the family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

1. THE JUDGE: In this case St, who is now 16 years old, made an application for permission to make an application for contact with her brothers and sisters. A subsequent change in the law means that I now have to describe what she sought as a child arrangements order permitting her to see her brothers and sisters. She wished to make such an application against her parents, Jh T and J T. I will refer to Jh T as one of her parents. He is not her biological father but he regards her as his daughter and until recently she regarded him as her father. She has been told of the identity of her biological father but it is proper to refer to Jh T as a parent; he has always – subject to some of the matters dealt with in this judgment – played that role so far as she is concerned. I should also say that she no longer uses the surname by which I have referred to her, she calls herself St P. Neither surname is to go into the public domain when this judgment is published.

2. The application is dated 19^th September 2013 when it was issued although St had signed it at the end of August 2013. The children, in respect of whom the application was made, are:

A – born on 5^th December 1999, she is 14 years of age;

J – born on 14^th October 2002, she is 11 years of age;

MJ – born on 7^th April 2005, she is 9 years of age;

Ja – born on 14^th December 2006, he is 7 years of age; and

Js, born on 1^st April 2010, he is 4 years of age.

St also has an older sister, Jd, in respect of whom no application has been made. I presume that is because Jd is of an age where it would not be appropriate to make an application. The arrangements made as a result of St’s applications may result in Jd also seeing her. I note that Mrs T is expecting an eighth child and I expect that St will eventually hope to have contact with that child as well.

3. St is presently subject to detention in [name of hospital given] for treatment for mental disorder, pursuant to s.3 of the Mental Health Act 1983. I take her diagnosis from a letter written to the court by [name of responsible doctor name given], who is the responsible clinician/consultant in charge of St’s treatment. He says, “Diagnostically, I would suggest that St presents with emerging emotionally unstable personality disorder of the borderline type”. That diagnosis has been made after St was involved in a number of very serious and occasionally very dramatic incidents of self-harm.

The History in Outline

4. St came to the attention of child protection services in Lancashire in February 2012, after she made an allegation, which is said to be unsubstantiated, of assault against her mother. The family account at that time was that St’s behaviour had completely changed after an incident in November 2011 during a school trip. The precise details of that incident have never been relayed by St. The Local Authority have made some considerable efforts to investigate what may have happened, whether anything happened and who was involved, but to no avail. Indeed St’s account of the incident and her history has vacillated and from time to time she has suggested that her problems may have been rather more longstanding than simply that incident in November 2011. The Local Authority have attempted to investigate but it may be without St being more forthcoming that nobody ever will be able to investigate effectively. I mention this part of the history only because the alleged incident is something which has played particularly significantly into the reasoning of the Local Authority, as I will come to describe.

5. As I have said, St’s behaviour from that point escalated to be extremely troubling and to incorporate, as I said, very dramatic incidents of self-harm. On one occasion she threatened to throw herself off a motorway bridge and on another occasion she threatened to throw herself under a train. It is not unfair; it seems to me, having read the history, to say that St’s parents struggled to manage her and her behaviour. They had five other children and her conduct was extreme. All of the professionals who have met them consider that there may be a degree of impairment in their general abilities and Mr T concedes that he is not able to read. It is perhaps entirely understandable that they did not manage and could not cope with St and it seems to me that it is completely uncontroversial to say that she was out of control without any attribution of culpability to them; that is simply the fact of St’s life since 2012. In June 2012, after one of those dramatic incidents of self harm, after an admission to a local hospital, St became accommodated by the Local Authority.

6. It again seems to me uncontroversial to say that from that point on her parents have almost wholly delegated their exercise of parental responsibility for St to the Local Authority. They have not, in reality, resumed it in any meaningful way since then, and indeed, there have been long periods when, despite the best efforts of the social workers involved, they have not engaged with the social workers, they have not seen St and they have not made arrangements for her to see her brothers and sisters. That, at present, may be changing and that is very much to be encouraged. I seek to outline this history uncontroversially and without allocating culpability or blame for what has gone on.

7. St, after June 2012, underwent, largely thanks to her own behaviour, a large number of changes of placement leading to her being detained for assessment under s.2 of the Mental Health Act and then to detention under s.3 of the Mental Health Act for treatment. It would seem that at an early tribunal hearing concerning her detention she was represented by those who instruct Miss Perplus. A reference was then made, as a result of her instructions to them, to their family law department with regard to St’s concern about seeing her brothers and sisters. That reference resulted in this application.

8. I have not yet said who is representing whom, although I have mentioned now in passing two of the representatives. St is represented by Miss Perplus of counsel; Mr and Mrs T are acting in person (although Mrs. T has not attended Court). During the course of the proceedings, St became the subject of s.37 orders, as I will outline, and I also made her brothers and sisters party to the proceedings and therefore all the children have been represented by Mrs Clark of counsel, instructed by their Children's Guardian Mrs. Walwin-Holm. I had not dealt with representation prior to that paragraph of the judgment is because it has been necessary to outline the history of the proceedings to understand why those parties are before the court.

The Proceedings

9. St’s application was made on 19^th September 2013. Before that application could be made, as the rules require, St had proposed mediation with her parents but it is recorded in her application is that they did not engage with the process. This is entirely consistent with what was going on “on the ground” so far as I read the evidence of the social worker, who I have also not yet mentioned. She is Bernadette S, who has been the key social worker throughout my conduct of this case.

10. The matter came before District Judge Talbot on 8^th October 2013. He saw the unusual nature of the application, expressed some concern about St’s capacity to bring it and referred the matter to His Honour Judge Rawkins, the designated family judge for Lancashire. Judge Rawkins heard the matter on 23^rd October 2013 and his order, (at B21 of the bundle) records that St was a child who was accommodated by the Local Authority pursuant to s.20 of the Children Act 1989 and further records that by reason of that the Local Authority have a duty to promote contact between St and the children who are the subject of this application. That recording was made on 23^rd October 2013 and I consider it was likely to have been made in order to link with Judge Rawkins’ request for a s.7 report dealing with the children’s welfare from the Local Authority rather than from CAFCASS. He also provided for there to be a report about St’s litigation capacity and listed the matter before me.

11. The first time I heard this case was on 12^th December last year. At that hearing St, who incidentally has never attended before the court as she has always been subject to detention, was represented I think by Miss W, her solicitor and Mrs S, the social worker, attended. Nobody else was in attendance despite attempts by Miss W through her enquiry agents to have the parents personally served with the application. They did not attend, although there was evidence that they had been at home when attempts were made to serve them there. This meant that Mrs S was not able to provide the court with a s.7 report, not through any lack of effort on her part, but simply because she had not, throughout the course of her involvement, been able even to meet with the parents; they had not spoken with her.

12. I was extremely concerned, as can be imagined, and indicated that this may well be a case where there should be a s.37 report, to assess whether public law orders were required in respect of all of the children subject to the application and in respect of St a child herself. In order to progress the matter I granted permission to St to make her application for contact. The merits in favour of that course seemed to me to be overwhelming in that there was a 15-year-old who wanted to see her brothers and sisters and could not do so. On the face of it that application needed to be made and before the court and I provided for the matter to come back before me on 7^th January 2014. On that day CAFCASS, via their senior officer David Jackson, were in attendance together with Mrs S and Rachel H, the two key social workers in the matter – Mrs S for St and Rachel H for the children who are the subject of the proceedings. Each of the parties apart from the parents were represented by counsel at that hearing. This includes the Local Authority who have never been party to these proceedings but they have been invited by the court to attend each hearing and to be represented if they wished. The orders have never obliged them to be either legally represented or in attendance, except insofar as their employees were witnesses. That seemed to me to be fair and proper.

13. On 7^th January 2014 it emerged that St’s status had been changed by the Local Authority and that she was no longer deemed by them to be a child looked after within the meaning of the Children Act, with to s.20 status, but was deemed by them to be a child in need under s.17 of the Children Act. That was extremely concerning because the change of status was reported already to have had a direct impact upon St’s circumstances for the worse. It therefore seemed to me to be appropriate to make a s.37 direction in relation to St and to make her brothers and sisters parties to the proceedings. I recorded, the Local Authority being represented, what the Local Authority had to say about the change of status at that hearing and the order I made includes this recording:-

“The Local Authority contends that under internal policy, St is not ‘looked after’ by them and has not been since she was sectioned under s.3 of the Mental Health Act 1983.”

There are also included some recordings about the paucity of financial provision for St.

14. I should explain in relating the directions that I made on that occasion, which appointed two separate children’s guardians, one for St and one for the children subject to the proceedings, that there was at that point, potentially, a conflict between the interests of the two sets of children.

The judge noted at this point that the orders drawn by the Court appointing the Children's Guardians had been prepared under the wrong subsection and requested that they be corrected under the “slip rule”

15. The matter came back before me again on 17^th January 2014 because there had not been the opportunity for a multidisciplinary meeting to take place to prepare a contact plan for St and her brothers and sisters before the earlier January hearing. The next hearing of importance for the purposes of this judgment was on 10^th March 2014. Once again, I made recordings about St’s circumstances, setting out what was being relayed to me by the Local Authority through their counsel; this is recorded on the face of that order:-

“Lancashire County Council informed the court that they deemed the applicant, having ceased to be accommodated under s.20 of the Children Act 1989 when she became detained under the Mental Health Act in September 2013”.

And also;-

“Lancashire County Council further suggests that from the point of such detention, primary parental responsibility which was not being exercised by the respondents was to be exercised by the hospital”.

I was sufficiently concerned that this decision making and approach deprived St of anybody to exercise parental responsibility for her was likely to cause her significant harm given her particular vulnerabilities and circumstances. I therefore made interim care orders in respect of her in accordance with the section pending the preparation of a further s.37 report the need for which was conceded by the Local Authority,.

16. It was clear by that hearing that there was no conflict of interest between St’s siblings and St because those investigating their welfare and their wishes and feelings were and are of the view that it is wholly in their interests that such a relationship be promoted. It was therefore possible to discharge Mr. Jackson, the senior CAFCASS officer who had been St’s guardian, from his role in the case and to appoint Mrs.Walwin-Holm as St’s Children's Guardian. Mrs. Walwin-Holm thus became appointed for all of the children in the proceedings.

17. The matter came back before me on 8^th May 2014, because I had expressed the view that the Local Authority should consider issuing care proceedings. The Local Authority declined to do so. On 8^th May 2014 I expressed disappointment at their decision and recorded that disappointment on the face of the order. However the Local Authority did concede the need for a further s.37 report in accordance with a suggestion from the Children's Guardian and further did not oppose the continuation of the interim care order that I had made on 10^th March 2014 until this hearing.

18. Having now heard the evidence of a senior manager of the Local Authority, David McHale, it would seem that the decision to change St’s status was made during a supervision meeting between him and the team manager of Mrs S. He says that this occurred on 4^th November 2013 very shortly after the recordings made by Judge Rawkins which I have set out. I listed the matter for a full day before me in Lancaster on Thursday, 7^th August 2014, in order to consider the evidence about St’s welfare. It was my anticipation that I had stretched the jurisdiction to make s.37 assessment directions to the Local Authority to its limits and that therefore the only opportunity for a court to consider St’s welfare, would be at that hearing.

19. If I turn to why I am actually delivering this judgment. The application that is before the court is made by a child in respect of her siblings. That means that it is their welfare that is my paramount consideration and in determining that application, the welfare of the applicant is not prioritised or arguably even considered. So when I come to look at what orders I should make, I have to prioritise the welfare of St’s brothers and sisters and not of St. In this case the applicant herself is self evidently an extremely vulnerable child whose welfare needs may not have been met by either her parents or perhaps the Local Authority. Furthermore her welfare and that of her brothers and sisters is inextricably bound up.

20. As I said at the beginning of the case, before the investigations commenced, there was arguably a conflict between her interests and that of her brothers and sisters but all the professionals now agree that the promotion of regular contact their relationship is in the interests of all of them. However there may yet still develop a dispute about what is the proper frequency and duration of such contact which is heavily dependent upon social services’ input and other professional input.

21. At a very early stage in the proceedings it seemed to me that care proceedings in respect of St would be overwhelmingly in her interests to enable her welfare also to be a paramount consideration of this court. It also seemed to me that the threshold criteria to justify those proceedings, whether under s.38 or s.31, were overwhelmingly made out and also that it might be appropriate for such proceedings proportionately and reasonably to end in public law orders in respect of St. The Local Authority, as I have outlined, declined to issue care proceedings and therefore, as I have already said, this judgment is my only opportunity to address St’s welfare and it seems to me that while her welfare can be my paramount consideration, before I have to leave off making any more s.37 orders, I should explain why I consider three separate aspects of the Local Authority’s decision making in respect of this child are in error and represent a failure to promote her welfare.

22. I have three purposes in delivering the judgment. Firstly, I very much hope that after receipt of the judgment the Local Authority will review again their approach to this case. It seems to me that it is always a professional strength and not a weakness to be able to change decisions previously taken if it is right to do so. Secondly, this seems to me to be an important opportunity to publish a judgment which highlights what has happened to a child who ought to have benefitted from two statutory schemes of protection, both under the Mental Health Act as a person suffering from a mental disorder and under the Children Act as a child who a has suffered or is likely to suffer significant harm. St, in any event, is a child whose welfare overwhelmingly deserves scrutiny and promotion within proceedings. Thirdly, and this is not my primary purpose, it is the intention of those who act on behalf of St to pursue either or both a complaint and/or other remedies in respect of her against the Local Authority and it may very well be that there are matters covered in this judgment that they consider to be of use in pursuing such courses of action. Providing assistance for those proposed actions is certainly not my primary objective and neither would it be proper for that to be a primary objective. The judgment is therefore mainly given in the hope that the Local Authority might reconsider and to highlight the difficulties that have beset this child who has unfortunately fallen between two statutory umbrellas of protection.

The Evidence

23. I have read and reread all of the documents filed in the evidential bundle and I have had the advantage of hearing the oral evidence of Mr David McHale, the senior manager to whom I have already made reference who was primarily responsible for the decision making. I have also heard the evidence of Bernadette S, key social worker, who has worked on this case throughout the history of the proceedings and from Mrs. Walwin-Holm, the children’s guardian.

24. I omitted to say when outlining the history of the proceedings that in accordance with Judge Rawkins’ direction for a report concerning St’s litigation capacity, a report was indeed prepared by Dr W supervised by St’s responsible clinician, confirming that she does have litigation capacity.

25. I turn to the statutory framework. I have already made reference to s.20 of the Children Act and s.17 of the Children Act 1989. I do not want to read into the judgment those sections in their entirety but it is appropriate if I try and describe in a summary form what I understand the statutory framework to mean. It is not my understanding that there is any legal dispute in this case about it. Section 20 of the Children Act requires the Local Authority to accommodate a child within their area who appears to them to require accommodation. St was, at the beginning of these proceedings and apparently now is again, considered by the Local Authority to be a child who is provided with accommodation by them within the meaning of s.20. She gained that status from the point that they assumed her care and were delegated parental responsibility for her by her parents in the summer of 2012 in the circumstances I have outlined in going through the history. That means, that for the purposes of the Children Act 1989, St became a looked after child within the meaning of s.22(1) of the Children Act. A number of rights on her part and responsibilities on the part of the Local Authority come automatically with that status. The following list of those rights and responsibilities is not exhaustive but seems to me to include the key rights and responsibilities that apply to St.

26. By paragraph 15, schedule 2, of the Children Act 1989, the Local Authority are mandated to endeavour to promote contact so far as is reasonably practicable between a Looked After child and her parents and other relatives. Other relatives plainly include her brothers and sisters whether they are full brothers and sisters or half brothers and sisters. S.22 imposes various other duties on the Local Authority in respect of looked after children, including the duty of consultation in respect of any decision made in respect of them. That duty is set out in section 22(4). Furthermore, a child who enjoys Looked After status is a child whom the Local Authority must maintain by s.22(b) of the Children Act 1989 and I understand that to mean financially maintain the child. Finally, for St’s purposes, a Looked After child is subject to the 2010 Care Planning Placement and Case Review regulations, that is SI 2010/959. In particular this means she must have an Independent Reviewing Officer, she must be subject to a Looked After child regime and the Local Authority must prepare written care plans in respect of her.

27. Section 17 of the Children Act 1989 requires a Local Authority to safeguard and promote the welfare of children within their area who are in need. That assistance is subject to the Local Authority exercising their discretion as to what form it may take. Obviously they have a duty to exercise that discretion reasonably and the provision made could include providing that child with financial assistance or maintaining them. Under s.17 there is no duty to promote contact, there is no duty to carry out regular reviews of that child’s circumstances, there is no independent reviewing officer and the child has no right to be maintained by the Local Authority.

28. As I have outlined, at an early stage in these proceedings, by a process which frankly still remains opaque to me, the Local Authority deemed St not to be an s.20 child but to be a s.17 child. I say in passing, because it is not for me to review the lawfulness of the decision making process although it may well be for somebody else to do so at some point, that there appears to have been no consultation about this decision either with her, with her parents, with her independent reviewing officer or with the clinicians at the hospital where she was being treated. It is said by the Local Authority, through Mr McHale’s oral evidence and in his first statement, that changing her status was part of a larger plan to encourage her parents to take more responsibility for her. I quote exactly what Mr McHale says in his first statement of 31^st March 2014:-

“I decided on this course of action because the care planning approach adopted by the hospital superseded any care plan that the Local Authority developed whilst St was subject to an s.3 order Mental Health Act 2007” –

( I think he means Mental Health Act 1983 which was amended in 2007)

He then goes on to say at paragraph 6:

“It was also anticipated that it would be constructive in the longer term to promote the relationship between St and her family. Having a child labelled as a looked after child can give permission for some families to ignore their child as the parenting role is perceived as being taken over by the Local Authority. Changing the legal status was part of a longer term plan to allow and encourage her parents to become more involved with her welfare and wellbeing”.

My judgment is not delivered for the purpose of reviewing the lawfulness of the procedure but having considered the evidence to support that stated objective it seems to me that those acting for St in respect of the lawfulness of the decision will wish to achieve disclosure of the contemporaneous evidence of that objective and of its being communicated to any of the key protagonists, in particular the parents whose better engagement was to be prompted. I remind myself of the evidence of Mrs S, both orally and in writing, that at the point nobody was even getting to speak to the parents let alone share with them that the change of status was part of a plan to prompt their greater involvement. As I have said, the mechanism of that decision is still not clear to me. Mr McHale’s oral evidence was that it was made during the course of a routine supervision meeting by him of Mrs L, the key social worker’s manager. It was also his evidence that the decision was a child specific decision for the objectives that I have related. His assertion belies the recordings that were made in January and March at Court in accordance with the submissions of counsel instructed by the key social worker. It would rather appear therefore that the welfare based and focused objective reasoning specific to this child that is now claimed for the decision was not communicated, either to the child, the family members, the IRO, the hospital or even the key social worker herself.

29. I have a further concern about the mechanism, which probably should have been put to Mr McHale during the course of his cross-examination, and it maybe that I have misinterpreted the documents. The date he put upon the supervision meeting in which the decision was made was 4^th November 2013, yet the records of the contemporaneous Looked after Child review meeting of 4^th November 2013 (at F191) is strongly suggestive that the decision had been taken prior to that meeting. Furthermore the s.7 reports produced by Mrs S for the December or January hearings do not communicate the change of status. That change came out at the January hearing as a result of the difficulties St was facing at that time which were relayed to the court by her legal team. I have already read into the judgment the recordings that I made on 7^thJanuary and 10^th March 2014 and I do not need to repeat them but they contradict, it seems to me, the reasoning claimed by Mr McHale.

30. I am not going to attempt to make a finding of fact as to what the reasoning actually was or what was actually decided. Mr.McHale claims that it was a child specific welfare focused decision. If it was, it seems to me that it worked very badly indeed because it had an immediate impact upon the service that St was receiving for the worse. She ceased to receive any financial support from the Local Authority and the level of moral and social support given to her also decreased in the wake of that decision. There was a CPA (Care Programme Approach) meeting at the hospital in December 2013 which the Local Authority did not attend. St therefore lost her Looked after Child status and the review system, she lost her independent reviewing officer, she lost the duty of the Local Authority to promote contact between her and relevant people and she was left with no money for basic necessities. She is said to have felt abandoned, a feeling that she has been reported as having to have felt on a number of occasions during the proceedings.

31. Mr McHale asserted that this was never his intention and that in fact what he intended was for all those services St had been receiving under s.20 to be continued by way of an exercise of discretion under s.17. The Local Authority have not brought any contemporaneous documentary evidence to support this assertion. Mr. McHale was apologetic for particularly the loss of money for St which had an intensely distressing effect upon her in circumstances I will come to describe. In general however it seems to me overall that the impact of the decision, whether specifically child focused or a matter of policy, was deleterious to the welfare of the child. It seems to me as a matter of common sense and experience that if somebody is admitted to hospital they do not change their usual home or their residence. They go to hospital to be treated for the duration of an illness. It seems to me highly unlikely that a Local Authority would even contemplate changing a child’s status from s.20 to s.17 if that child were to be admitted to hospital for treatment for any serious or long-term physical illness. It therefore seems to me quite inappropriate that this child, who was subject to s.3 of the Mental Health Act and detained for treatment in hospital for a mental disorder should have lost a status which conveyed rights upon her which would have continued had the illness requiring treatment not been a mental disorder

32. It seems to me that the care programme approach of the Mental Health Acts should work hand-in-hand with the Looked after Child processes of the Children Act. These schemes should not be alternatives but should be complementary. That would seem to be the view also of the clinicians. The Local Authority and other parties to these family law proceedings have concentrated on St’s right to services upon discharge from hospital, whether as a Looked after Child entitled to a Pathway plan and services for leaving care or otherwise. That is not the focus of this judgment not only because it should not be the focus of this judgment but also because upon discharge from hospital under the Mental Health Act St will be entitled to extensive services both from the health authority and the Local Authority under s.117 of the Mental Health Act.

33. My concern is that St’s circumstances on the ground were acutely and deleteriously affected by her change of status and this was also the view of the clinicians at the hospital which was expressed during the CPA meeting to which I have referred on 13^thDecember 2013. I have the record of the meeting in which the following is recorded:

“On admission to [name of residence given] St was under a looked after child s.20. Whilst in hospital her case has been closed and she is no longer considered to be looked after. A senior support worker has not been allocated to ensure that St continues to have involvement with services whilst she remains in hospital.”

Later, the meeting, minutes record this:

“Members of the meeting expressed frustrations and difficulties associated with the removal of St’s LAC status due to her being in hospital. Difficulties arise in particular around St’s physical health and the need for parental consent for certain forms of treatment, despite the current lack of contact and care from St’s parents. There is also a lack of money for St now. Kayley I, advocate, also expressed St’s views and distress at the lack of monies. Options were discussed as to how this could be managed. Funding agreed from social care that St to receive £20 a month for toiletries, all agreed that this is not enough. The meeting discussed making a complaint to the Local Authority about the removal of a young person’s looked after care status when a young person becomes an inpatient and all agreed this would be a good idea.”

34. The last paragraph, which I also read in because it affects the third aspect of the Local Authority’s perspective on this case, is this:

“In relation to St’s contact with her siblings, a defined contact order has been requested to enable St to have specified and directed contact with siblings. The positive impact of this action was discussed. The benefit of a care order for St from the courts was also discussed. “

As a result of that meeting a letter was written by St’s advocate to her solicitors setting out that view and which expressed the concerns of the meeting of 13^th December. I am not sure whether a formal complaint was ever written to the Local Authority; no evidence of such a complaint has been filed at court.

35. When the matter came back before me on 7^th January 2014 I was told of the very distressing circumstance of St having had insufficient money to buy even basic toiletries or modest gifts for her brothers and sisters. This was obviously very important to her at the time. Christmas was a time when she felt, as many people do, particularly distressed by her separation from her family. Mr McHale apologised for this and insisted that that was not his intention. It may be, however, that those pursuing complaints or a review of what happened will seek to examine whether anything was written down to explain or support his claimed intention that St should have had exactly the same service as before delivered by reason of the discretion of the Local Authority rather than as of right.

36. I referred earlier in the judgment to St expressing a feeling of abandonment which I gleaned from a report prepared by her then family therapist at that time when she expressed feeling abandoned again, having been informed that she was no longer looked after by the Local Authority and likely to be moving on to an adult mental health team. When I had the position of the Local Authority outlined to me in accordance with the recordings that were included in my earlier orders and which I have related in this judgment, I invited the hospital team to contribute to the debate. I therefore have a full letter dated 21^st May 2014 written by Dr K, a consultant child and adolescent psychiatrist at the hospital, the responsible clinician for St. The letter sets out his perspective upon what he regards as the necessity of ongoing looked after status during admission. I am very grateful to him for providing that. He says at paragraph 3 of that:

“I find this to be an unusual position and not one which is taken by other local authorities who have responsibility for looked after children who are placed on [name of hospital given] unit.”

He goes on to say:

“I am not aware of any hospital ward that would take parental responsibility upon themselves. Provision of care in loco parentis is much the same as is provided by schools or residential homes and specific decisions regarding treatment require the hospital to seek consent from the individual with parental responsibility in a similar manner as would be the case in the community.”

37. He also goes onto say that St, for the most part, may have the ability to give her own views but that there will be times when that may not be the case given her illness. He says this:

“It may also be worth clarifying limitations of the Mental Health Act in regard to consent to treatment. Section 3 allows for the provision of treatment for a mental disorder to be provided within a hospital setting and as such it allows for treatment to be given under certain circumstances against a patient’s wishes or where they lack mental capacity to give their valid consent. However, the MHA only relates for treatment of the mental disorder, it does not make provision for physical health conditions to be provided against a patient’s wishes, nor does it allow for any other decisions to be made about wider aspects of a patient’s affairs and lifestyle. In the case of a minor, such a decision is either required to be made by taking valid consent from the patient or where this is not possibly by seeking consent from the individual with parental responsibility. There is no legal provision within the Mental Health Act, or any other statute of which I am aware, that allows for a hospital to take parental responsibility upon themselves. In fact I would argue that is strongly in the interests of the young person that a party independent of a hospital hold this role, particularly when the young person is detained by the hospital against their will.”

38. He goes on:

“Moreover, the benefits of continued looked after status whilst a minor is placed within a hospital setting go beyond the provision of valid consent for decisions that do not relate to the mental disorder. Given the complexity of St’s case and the nature of her social care needs it appears essential to me that she has the benefit of a social worker taking a parental role so as to provide her with continuity and stability of care as well as advice and support around the many challenging issues that she is currently facing.”

Equally that was the view of both Mr Jackson and Mrs. Walwin-Holm, the children’s guardians who have at different times represented St within these proceedings. Dr K’s perspective is that of an experienced clinician working within an acute setting to alleviate the distress and improve the situation of young people in the very distressing circumstances that St finds herself. Any person in hospital, whether a young person or a child or not, seems to me to need – and I apologise for being intensely practical – moral support, social support and financial support. My focus here is upon this child during this admission.

39. I have gone into detail as to the relative advantages of the statuses of s.20 and s.17, despite the fact that the Local Authority now say that they have resumed St’s s.20 status. This is because, quite apart from the fact that this is a survey of what has actually happened in this case, during his evidence, Mr McHale did not seem to me in principle to retreat from the decision that he had made to reduce St’s status to being a child in need from being a Looked after Child. Although the Local Authority’s stance on this has changed, it would not be unfair to say that this was a grudging change because when his reasoning was scrutinised during the course of cross-examination it seemed to me that given the same circumstances Mr McHale would very much want to make the same decision again. I have no understanding of why, if that is the view he takes, the Local Authority have changed St’s status. I commend them for having done so. However, Mr McHale’s evidence in effect was, “We have changed it even though I think I was right all along” I am concerned that St may be at risk should anybody come to review this case again within the Local Authority that without the benefit of scrutiny they may remove from her again those rights and responsibilities connected with S20.

40. I should, in passing, take some comfort from Mr McHale’s approach to the views of the clinicians. This paragraph I read from his statement, of 23^rd July 2014 also reflects his oral evidence when he was challenged. He says:

“While I respect the views of my health colleagues, they do not have a full understanding of the roles and responsibility of CSC in relation to children and young people and although we would always listen to their opinion, ultimately it is our responsibility to decide how we deal with individual children and their legal status.”

So I should perhaps take some comfort that the Local Authority are no more prepared to defer to the clinical view than the court’s view.

41. I turn to the second aspect of the Local Authority decision making which seems to me to have impacted upon St’s welfare. This is their decision to refuse, despite this court’s view expressed at least twice in orders, that this is a case where they should issue care proceedings. Miss Grundy’s submissions, which are extremely helpful, and plainly based upon her very clear instructions from Mr McHale, point out that the decision to commence public law proceedings is a decision that only the Local Authority can make and is not a decision for the court. Once they have started proceedings the court can grant or not leave to withdraw them, but it is for them alone to decide whether or not to start them. I am concerned that I have stretched s.37 to its limits in using its mechanism to have St’s welfare before this court. In terms of this case it seems to me, as I have already said, that the threshold criteria are established, that St’s welfare and what is in her best interests are in issue and the details of the plan to meet those needs are in issue and could and should properly be considered and reviewed within care proceedings. Care proceedings would have enabled St’s welfare to be at the heart of the proceedings throughout the proceedings, alongside that of her brothers and sisters. Care proceedings would have enabled St to have a children’s guardian acting for her throughout the proceedings. Care proceedings would have enabled St’s parents to be legally represented with non means tested public funding. That would have enabled a proper assessment of them to take place and might well have enabled them to have a much better understanding of the proceedings and encouraged them to be more involved and to exercise more parental responsibility than they have been until very recently indeed.

42. Mr McHale’s view runs contrary to the perspective. During the course both of his written statements and his oral evidenced he repeatedly, and it seems to me in error, conflated the establishment of threshold criteria in care proceedings and an investigation of what would be the correct welfare outcome for a child with issues of culpability and blame. He seemed to consider that care proceedings could only ever be viewed by parents as a oppressive and intrusive. It is actually very rare, in my experience, for blame and culpability to be the focus of care proceedings the primary purpose of which is to investigate what is in the best interests of children in very unfortunate circumstances. That is their primary purpose, to get to the right outcome for those children. This court does deal, from time to time, with issues of where responsibility may lie for apparent parental default but only insofar as necessary. Such issues are distinct from issues of blameworthiness or culpability.

43. Mr McHale’s evidence was also based on a very particular view of the facts in this case, perhaps best summarised by my quoting from paragraph 48 of his second statement in which he says:

“The family situation deteriorated very quickly after the school holiday in November 2011 which led to the development of a very complex family situation and life threatening suicide attempts by St”.

He goes on to say:

“There have been times when the parents have been (he says ambiguous but I think he means ambivalent) towards St, perhaps to be expected considering the events surrounding St over the past two years, her regular rejection of them, the attempted suicides and the involvement of the Local Authority in their lives.”

44. During his oral evidence, he talked of the alleged assault upon St, or whatever it was, in November 2011 as having been an assault which had impacted upon the whole family. That is a very particular interpretation of the facts in this case, derived I assume from Mr McHale’s reading of the papers. It may well be that it is a correct interpretation of the facts, I do not know. Two things can be said about it. There has been no proper forensic investigation of those facts and the Local Authority decision not to commence care proceedings has bypassed such an investigation ever taking place. It will therefore never be able to be said whether his interpretation is right or not. There is a difference between facts found after a judicial consideration of evidence and an interpretation of facts based upon a reading of evidence by somebody two steps removed from all the people involved. It is an interpretation that is open to Mr. McHale on the papers he has read. However, even if that perspective upon the facts is correct, it is by no means a perspective which is in any way incompatible with the Local Authority commencing care proceedings and allowing all those benefits to St of there being care proceedings accruing to both the parents and to St and allowing St’s welfare to be at the heart of these proceedings in the same way that her brothers and sisters are.

45. I remind myself that in this case, at the time when Mr McHale was making a decision not to commence care proceedings, the Local Authority had encountered according to the evidence of the key social worker both in writing and orally only minimal engagement by the parents. Furthermore it was only after orders of this court in these private law proceedings that the social worker was enabled even to cross the threshold of engagement both literally in terms of gaining access to the parents and metaphorically. It seems to me that in coming to the conclusions that Mr McHale has about commencement of care proceedings, and whilst he repeatedly rejected any suggestion that his decision making was a matter of policy, his reasoning was based on generalised and vague considerations and was not sharply focused on the needs of this particular child. It is not the role of this court concerned only with the welfare of one child to cross swords with Mr McHale on issues of policy but his perspective on the utility of care proceedings or not is disturbing. There was a passage during his oral evidence when he insisted that he had had in mind the needs of this particular child in coming to his decision to vary her status. He was asked by Miss Perplus, Counsel instructed by St, to particularise what considerations he had in mind; he failed to do so. He was asked by her again and he failed to do so again. My note, as I read aloud to him after giving him yet another opportunity to particularise his considerations, was that he failed to do so despite repeated invitations. So, whether as a matter of policy or not it is my conclusion that the senior manager in this instance has based his decision making on vague and generalised considerations.

46. The third aspect of Mr McHale’s approach to this case which seems to me to be very important is linked to the findings I have made as to how the key social worker gained access to the engagement of the parents. It was really only in a throwaway line in his evidence that he made it plain that he viewed the private law proceedings brought by St through the solicitors directly instructed by her as having been inappropriate. As I have already said, this judgment is no place for this court to cross swords with the senior manager of a Local Authority on issues of policy and I decline to do so. However, specifically focusing on the interests and welfare of this child, this court was seized of the application of a 15-year-old who had not seen her brothers and sisters for many months and who was obliged to bring these proceedings as the only route to being able to see them. I am quite satisfied, and indeed I consider the social worker also to be satisfied, having heard her evidence, that if St had not brought this application then she would not be seeing them now and that it is the orders of the court which have enabled that. Not only has this enabled the contact but it I also find, having heard the evidence of the key social worker, that the proceedings have been a useful tool to that social worker in securing the engagement of the parents.

47. Mr McHale in his evidence, having read what was trenchant criticism of the Local Authority written by Mr Jackson the then child’s guardian, repeatedly asserted that he considered that the Local Authority had delivered an excellent service to St. In that sense he seemed to me to be understandably taking up cudgels on behalf of his staff. I hope he understood, and I hope that anybody reading this judgment understands, that this judgment is intended to be critical, indeed trenchantly critical of the decisions of the Local Authority. However it is by no means intended to be a criticism of the staff who have been working the case on the ground. It is my impression that those staff, that is Mrs S and her manager, have delivered, as Mr McHale asserts, an excellent service to St within and despite the parameters of the decisions of their senior management. This judgment is not intended in any way to undermine that impression. This court, the social workers on the ground, their managers, the clinical team and the children’s guardian are all motivated by having come across a child in St’s situation to improve her situation. My focus has been on how the realisation of that aspiration has been marred by the decisions of senior management. I therefore agree with Mr McHale that his staff have delivered an excellent service to this child. This is despite the decisions that have been made by their senior management.

48. That is the judgment that I deliver so far as St’s welfare is concerned and I now have to depart her welfare and focus again on the welfare of her brothers and sisters whilst her application for contact to them is ongoing. It seems to me that the achievement of proper contact between her and them is still a work in progress at its early days and it is right, contrary to the position of the Local Authority to continue these proceedings until the end of that work in progress is closer.

49. I have not thanked the advocates for their very helpful submissions. St’s team and the Children's Guardian wanted me to make yet another s.37 direction in respect of St. I hope I have explained adequately why I decline to do so. It is not from any lack of concern about what has happened or from any change of view about what is going on. It is my perspective that my jurisdiction can no longer be stretched and Miss Grundy’s submission in relation to that is entirely right. However, neither of those two parties have urged me to bring an end to the proceedings completely but rather to give evidential directions that enable progress to be continued until the arrangements are able to be finalised.

50. The Local Authority case, put with admirable clarity by Miss Grundy in her written submissions, is that now is the time for the court to bow out completely not only in relation to St but in relation to all of the children and that the proceedings are ready to be concluded. There are cases when that is entirely right and the court should take a focused and issue specific approach to dive in and dive out of children’s lives and not exercise a more surveying role. In this case I decline to do so. It seems to me necessary that the proceedings continue and the court will bow out when the court is assured that that contact is set to continue appropriately and that all of the necessary services are going in. I flagged up to the parties the possibility of a family assistance order at the final hearing. No party considered this to be a good idea. This court’s scrutiny is going to be upon all of the professionals involved in any event, whether they remain in via s.37 or merely as witnesses. I note that the Local Authority decline to accept a family assistance order as well.

51. I would very much hope that the Local Authority will consider what I have said in this judgment. It is to be transcribed and published. It seems to me right that the plight of children who are subject to both the Mental Health Act because they are ill and need to be detained for treatment and to the Children Act because they are likely to suffer significant harm attributable to being out of control or by reason of parental default is one that should be brought to the public attention.

[Judgment ends]

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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> T (Children) [2014] EWFC B116 (13 August 2014) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2014/B116.html Cite as: [2014] EWFC B116

England and Wales Family Court Decisions (other Judges)