England and Wales Family Court Decisions (other Judges)

 

IN THE FAMILY COURT

Case No: CM14C05158

SITTING AT CHELMSFORD

Priory Place

New London Road

Chelmsford

CM2 0PP

IN THE MATTER OF THE CHILDREN ACT 1989

AND IN THE MATTER OF: E (A CHILD)

Thursday, 12 ^th November 2015

 

Before :

 

HER HONOUR JUDGE LYNN ROBERTS

 

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Re: E (A Child)

 

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Transcribed from the Official Tape Recording by

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Counsel for the Local Authority: Mr David O'Brien

Solicitor for the Parents: Miss Deborah Baxter

Solicitor for the Child: Mr Gary Stafford

 

Hearing dates: 12 ^th November 2015

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JUDGMENT

 

HER HONOUR JUDGE LYNN ROBERTS :

1.                   This is the hearing of the application of Essex County Council for a care order in respect of a child I shall refer to as E, a child of 15 although this is not her real name. She was born on [a date in] 2000. E has been represented before me by Mr Stafford, instructed by E's guardian, EE; E's mother, Mrs P, and her father, Mr P, by Miss Baxter; and the local authority by Mr O'Brien.

2.                   I have read a bundle of documents prepared for the hearing and several documents which were not in the bundle and some historical documents. The most important perhaps have been the various documents from the social worker, from the parents, from the guardian, various health reports and in particular from Helen Mullem who is the named nurse for looked after children who I also heard evidence from. Indeed, I heard evidence from her and from the social worker, Mr Chizimba, and from the father and from the guardian.

3.                   This is an unusual case and the issues are different from the ones I generally have to determine. E is a child with complex medical, physical and psychological difficulties, whom her parents accept cannot be cared for at home, although she visits home each weekend. She has been accommodated under s.20 of the Children Act since 2012 and the issue is whether such an arrangement should continue or whether the local authority need to share parental responsibility with E's parents in order to ensure that her welfare needs are met.

4.                   The position of the parties is as follows. The local authority say that E has suffered and is likely to suffer significant harm as a result of the current arrangements as operated by her parents and that a care order is the only order which will ensure that E's needs are fully met. The parents dispute that the threshold is met for the making of a care order, but say that if it is, sufficient progress has been made during these proceedings for the court to conclude that a care order is not necessary and that it is better for E and her family for the current voluntary arrangement to continue. The guardian agrees with the local authority and does not think there is sufficient evidence of meaningful change in the parents' approach.

5.                   By way of background, E is one of twins and has the capacity to enjoy her life and it is abundantly clear to me that she is cherished by all those who care for her. Her many disabilities and difficulties resulting from having Turner syndrome of the mosaic kind mean that her care needs proved overwhelming for her family and they point in particular to her sleeping difficulties. As I have said, they did care for her and it is clearly a regret for them that they cannot still care for her. Their love for her and commitment to her has not diminished and my impression is that she is as much in their minds as if she was living with them. To a great extent, that is a positive, as E remains very much part of the P family life, spending much of each weekend with her family. It also means that over the years E's family has always done all they can to ensure that E receives the best care, the best services, all that she has been entitled to. Neither of these factors is in my experience typical of very disabled children.

6.                   So far, I have described the parents' approach as a strength and an asset but, unfortunately, this case has come about because there is a negative side to it and that has become apparent during the years that E has been accommodated. Although she is accommodated under s.20 and her primary home for four fifths of the week is in the care of the local authority, the parents have struggled to acknowledge this fact or respect the role of the professionals, the non-family members who care for E. The restrictions and obstacles which have arisen have, the local authority say, caused significant harm to E and are likely to cause her such significant harm going forward and the local authority say that parental responsibility must be shared in E's interests. Whatever the outcome of this hearing, the parties are agreed that E will stay in local authority accommodation, a point I will return to however, and that she will continue to spend much of Saturday and Sunday with her family.

7.                   I should mention at this stage that I believe for the first time in a care case I directed at the start of this case that mediation should take place because it seemed to me that, with the help of a skilled professional, a way forward should be able to be found. Sue Hayward was that skilled professional and she has made great efforts and has provided two reports and a letter. She subsequently became the independent social worker in the case after the initial mediation had not brought about sufficient agreement. She said in her final advice to the court that she considered a care order was necessary because, in essence, there had not been sufficient progress on the part of the parents. It had already been agreed that Miss Hayward would not need to give evidence before her last bit of evidence and although the parents did not cross-examine her, I was well aware that they did not agree with that final conclusion.

8.                   I turn now to the threshold part of this case. s.31(2) of the Children Act says that:

"A court may only make a care order if it is satisfied that the child concerned is suffering, or is likely to suffer, significant harm and that the harm, or likelihood of harm, is attributable to the care given to the child, or likely to be given to her, if the order were not made not being what it would be reasonable to expect a parent to give to her."

Subsection (9) says:

"'Harm' means ill-treatment or the impairment of health or development.

'Development' means physical, intellectual, emotional, social or behavioural development.

'Health' means physical or mental health."

Importantly, subsection (10) says:

"Where the question of whether harm suffered by a child is significant turns on the child's health or development, her health or development shall be compared with that which could reasonably be expected of a similar child."

9.                   Miss Baxter has referred me to two relatively recent cases on threshold, [Re A (A Child) [2015] EWFC 11 and Re MA (Care Threshold) [2009] EWCA Civ 853 as well as Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, which I have reconsidered. Her case, which was, as ever, eloquently put, is that E has not suffered harm, but if I find she has, it is not significant harm and that the local authority have not sufficiently linked the concerns which they have with the threshold criteria. I do not agree at all. I find the threshold document, which is a succinct and very clear summary of what has happened and what the risks are in this case, to be proven in its entirety and it is very much a cumulative effect. Although it is possible that one of the facts referred to on their own would not be sufficient to prove threshold, put all together I am satisfied that E was likely to suffer significant harm.

10.               The parents dispute each of the paragraphs, but the evidence is clear on each. The social worker gave evidence at some length and referred to the past records. I also heard from Helen Mullen and I heard from Mr P. I did not hear from Mrs P, but this was on the basis that they stand together. The disagreements which Mr P, and it seems to me mainly Mr P, has with the individual examples in the threshold document are based in part on semantics and otherwise a distorted view of what has happened. Mr P had reasons and excuses for his and his wife's actions, which have been set out in the document, but from an objective viewpoint, which I am applying, they do not stand up. Each of the examples, (a) to (i) are proven. The instruction to paragraph 2 and 2(j) and 3 are a fair summary of the position E was in as a result of the parents putting obstacle after obstacle in the way of the local authority and others caring for E, such as [residential care home A stated] where E was placed, and the health professionals other than doctors. It does seem to me that doctors are the only professionals for whom the Ps seem to have due respect.

11.               The local authority were indeed unable to update E's child and family assessment in a prompt manner when they started trying to do this from November 2014 until the parents were compelled to work with the local authority because of the court proceedings. The failure to allow care workers from [residential care home A stated] to attend and participate in E's medical appointments similarly continued until recently. The refusal to allow [residential care home A stated] to see the letters which E's several consultants send out following medical appointments continued until recently.

12.               I have no doubt that E was as a result at risk of significant harm. For example, the parents refused to share the lengthy reports which emerged after the epilepsy assessment and the reports did not just comprise of symbols as Mr P suggested. The local authority in any event, who have the majority of her care, very much needed to understand what that report said and E was at risk from being in the care of people who were in the dark about what was going on for her in that important area as a result. Mr P seemed to think he had the knowledge to assess what people caring for E needed to know, but the contrary is correct. The local authority workers have access on a daily basis to people such as Helen Mullen to assist them in interpreting such reports and getting through any difficulties which arise. The parents do not.

13.               It is now acknowledged by all that [residential care home A stated] is not meeting E's needs. The social worker told me that if he had been able to complete his assessment earlier, he would have been able to identify that earlier and the proposed move to [residential care home B stated], which all now agree is in E's interests, may have already happened.

14.               Miss Mullen was asked about the importance of the RHA report which she did and she said:

"Working in partnership, this is a care plan which we devised which summarises her healthcare needs and an action plan so that we can review and plan for services which need to be involved and to improve the outcome for E."

I am sure that Miss Mullem was right in thinking that an inability to progress this work also put E at risk of significant harm.

15.               I do not think it is necessary to go through all the sub-paragraphs at paragraph 2. I need however to address the issue of whether E has suffered significant harm. On balance, I find that she has. I am particularly concerned with the fact that E was prescribed an important drug in January, but the parents' refusal to share the proper information about this with the local authority and [residential care home A stated] meant that she did not receive it until April. Miss Mullem said to me:

"Dr Ditarni and Dr Brain from UCH who look after the Turner aspect of E's condition have recently prescribed a medicine which protects bone density. It was prescribed in January, but she did not start receiving it until April. Her bone age is younger than it should be and under-mineralised and this medication has usually been started by now."

On the balance of probabilities, I find that this example alone crosses the threshold for actual significant harm directly related to the actions of the parents.

16.               Another example is that the speech and language therapist in July 2014 had prepared a much needed sensory education programme for E which was happening at school. It was very important in order to be fully effective for E for this also to be followed in [residential care home A stated]. The parents appeared to be in support of this, but then did not give their consent for it to start and it did not. This was not then reviewed again until January 2015 and I still do not know if it has started or not. I ask myself if the parents' wish to have E moved from [residential care home A stated] may possibly have led to such misguided responses. I do not know. I am satisfied that E has suffered significant harm as a result as she has not been able to receive the therapeutic approach which her treating therapist prescribed for her.

17.               Miss Baxter questioned whether the harm which I have identified in part and which is all through the papers is significant. I have already pointed to the example of the medication for bone density and the therapy, both of which I consider to be significant, but, in addition, I remind myself of subsection (10) of s.31. E has so many serious distressing physical and mental difficulties. Another child with her difficulties whose parents are fully cooperative or possibly not involved at all, such a child would be able to access all the care she needs when she needs it and those caring for her would be aware of all that needs to be known. She would get the correct medications immediately. I have no doubt that the harm that has been caused to E not being in that position is significant. Furthermore, it is only in my view because of the great efforts of those caring for E in extremely difficult circumstances that E has been protected from suffering significant harm more often.

18.               Having found the threshold proven, I move on to consider if it is necessary now for the local authority to have a care order for E. The law I have to apply is set out in s.1 of the Children Act and it is E's welfare which is my paramount consideration. The local authority and the guardian say that it will only be under a care order that E will be protected from the experiences which I have referred to and which have been on-going since 2012. The parents say that to make a care order would be a disproportionate response to the issues, that they have made changes and promises and commitments during these proceedings which mean that the situation is now very different. They say that they are content for the local authority to have access to all medical letters. They are prepared for E's carers to attend and participate in medical and other appointments. In future, they say there would be minimal scope for disagreements which would impact on E. They say that it is agreed that E will be moving to [residential care home B stated] , which would allay many of these concerns as they have not been happy with the provision at [residential care home A stated]. The evidence with regard to the move to [residential care home B stated] is particularly on the point in my judgment. I was told that all are in agreement with it and it certainly sounds like an appropriate and pleasant home for E.

19.               E currently attends school in X in the north of the county and the parents want her to stay at that school. [Residential care home B stated] is on [area of residential care home B stated]. The social worker explained that [residential care home B stated] has two suitable schools in its area and that the Education Department would have to decide whether E should move or could be maintained at her current school. The social worker clearly saw the advantages of her staying in the current school, but was also concerned at the distance E would have to travel each day, which could potentially cause her difficulties, especially in the light of her epilepsy. It was not his decision, but I got the impression that he felt that if she could manage the journey, it would be better to stay at her current school. The parents are clear that they want E to stay where she is.

20.               I am not confident that the parents will in practice agree to E moving to [residential care home B stated] if it means she has to move school. I cannot make a finding because the evidence did not cover this exact point. However, Mr P did make it very clear that he did not want the GP, dentist or other health services to move from the north Essex area to the area around [residential care home B stated]. Mr P said that if E remained at [name of school stated] in X, she should attend services local to school, but I find that that was so that he and his wife could remain in control of such services rather than it being about reducing travelling for E, which is what he said. "E could always attend such services before or after the school day." The point is that it will be a requirement of [residential care home B stated] that E attends the local GP, dentist and probably podiatrist.

21.               Mr Stafford asked Mr P the following:

"The guardian has spoken to [residential care home B stated] and they would expect all those resources to be local and you would have to sign such consent to that. They require the services to be local. Do you understand you will need to sign?"

Mr P responded:

"You're asking me to sign a consent without taking into account what is best for her."

22.               I find that on a balance of probabilities, the parents will not work with the local authority for E to be moved to [residential care home B stated] if that means that all E's health services will also be moved away from the north of Essex. This would be harmful to E and would result in the breakdown of the agreements which we have been striving for in these proceedings as well as meaning that she stayed at [residential care home A stated] , which is not meeting all her needs. In my judgment, Mr P gets so concerned with one aspect of E's care and gives unreasonable priority to one aspect that he loses the ability to look at the whole and E's parents in my judgment lose focus on her needs.

23.               I was alarmed at the answer Mr Stafford got from Mr P with the very last question put to him. Mr P was asked, "Would you sign today that the local authority can have all the medical information about E?" Mr P's response after all we have gone through for the several months of this case as well as the two days of the final hearing was, "I would have to seek legal advice on that." After lunch, Miss Baxter confirmed, legal advice having been given presumably, that the parents would sign. There are at least three difficulties with this. First, I had been under the impression we had moved way past that issue and was concerned that clearly we had not. Secondly, it is an unfortunate part of this case that the parents regularly and frequently say to the professionals trying to do their work that they, the parents, might sue them. It is not in E's interests for there to be a litigious approach and it has in effect, in my judgment, effectively paralysed the professionals from time to time, which has to be against E's interests. There was no need for Mr P to seek legal advice about something which has been central to this case since the first day. Thirdly, it shows me that there will always be issues, however many agreements we think we have reached, which will come up and as a result, E's care will be compromised because the parents will not agree or will delay or will require more information and then delay or make threats of legal action.

24.               After an agreement had been reached that a worker from [residential care home A stated] could accompany E to medical appointments and take part, the parents objected to the particular worker on the ground that Mrs P, who has a disability, struggles with that lady's accent. That was not a child-focused decision as that was the worker who E knows best and who could have contributed best to the medical decisions being made.

25.               In his oral evidence, Mr P generally came over as thoughtful, but it was very hard to pin him down at all on anything. I found his answers to be disingenuous and when I re-read his written evidence and in particular the accounts during these proceedings of what he has said to Mrs Hayward and what Mrs Hayward was told by the professionals about his attitude, I am sure, sadly, that Mr P has not made the progress which is necessary to allow us to proceed without a care order. Mr P is very protective of E for understandable reasons. He considers that he has had to fight hard to get her the services she requires. However, he is now unable to allow those services to do their work fully to meet E's interests. Mrs P chooses not to or is unable to bring him to a different position. What is likely to have started out as helpful to E, as I understand that many parents of disabled children struggle initially to get the help needed, has now become an entrenched mistrust of the services and lack of respect for the professionals involved, which stands out clearly from the papers, and therefore a loss of focus of what is really important for E.

26.               I note that Mr P really cannot explain, for example, his hostility to the local authority professionals having access to E's medical information. He said that things in there would be private, but acknowledged that E would not herself be aware or troubled by the breach of her privacy. I do understand the wish for E to be treated with dignity and respect, but I am convinced that the vast majority of the professionals who will be involved and are involved in E's life will be well aware of the importance of this. Perhaps E's parents should concentrate on being vigilant that this is the approach of all the people concerned rather than start with what appears to be an assumption that no non-medical professional is to be trusted.

27.               The feelings of E's parents to the making of a care order are relevant, but it is E's welfare which concerns me most. She has particular needs which the local authority and the NHS have had difficulty identifying in the past and therefore have not always been able to meet. In order to prevent a repeat of the past, I am sure that E needs to be subject to a care order. I consider this to be a proportionate response to the difficulties as I consider that it is very likely that without a care order in place which will give the local authority shared parental responsibility the professionals will continue to be prevented from doing their jobs properly to E's detriment. I therefore make a care order.

[Judgment ends]