X (Child with profound disability) [2016] EWFC B100 (18 November 2016)

Case No:NE16C00208

In the FAMILY COURT at

NEWCASTLE upon TYNE

The Quayside

Newcastle upon Tyne

NE1 3LA

18 ^th November 2016

B E F O R E:

HIS HONOUR JUDGE SIMON WOOD

Re X (Child with profound disability)

_____________________

Judgment

_____________________

Compril Limited

Denmark House

169-173 Stockton Street

Middlehaven

Middlesbrough

TS2 1BY

Telephone: 01642 232324

Facsimile: 01642 244001

Introduction

1. The court is concerned with the welfare of X, a girl born in 2004, so now aged 12 years.

2. Newcastle City Council, on 16 ^th March 2016, issued proceedings seeking a care order with a plan of long term foster care. The plan in this very unusual case is opposed by X's mother, M. X's father, F, adopts an essentially neutral position. The children's guardian, Barbara Hewitt, had, I think by the conclusion of the hearing, broadly supported the making of a care order, but had very serious concerns about the care plan and invited me to decline to approve it.

3. X is the younger of two children born to her parents. She has an older brother, Y, who is now fourteen. When X was just ten weeks old she suffered a catastrophic injury at the hands of her father who shook her violently, leading to irreparable brain damage and profound disability. The reason that this case has been brought so many years later was succinctly summarised by X's children's guardian in paragraph 9 of her report of 10 ^th August 2016. In identifying the issue as to what A's living arrangements should be, she said:

"Both parties are adamant that their position is the right one and seek the court's intervention to assist with reaching a conclusion to this dispute."

4. Whether the court even has jurisdiction to intervene, as the guardian suggests, is however itself a profound issue because the court is not empowered to intervene unless the criteria in section 31 of the Children Act 1989 are met and M argues that they are not. If they are met, that is not an end to the matter, because the court then has to consider the order - if one is necessary - on the least interventionist basis that is necessary to meet X's welfare needs, taking into account the paramountcy of her welfare. That is to say the factors, amongst others, in the welfare checklist as well as X's and M's Article 8 rights.

Background

5. I need to sketch in the history. This was not a family known to the local authority until X was injured. She and Y were then taken into foster care. F was prosecuted for causing grievous bodily harm with intent and was imprisoned. He has played no part in X's life since then and has absented himself from this hearing, being provided with redacted information, so as to reduce the chance of identification of any key individuals or places associated with X and M.

6. Initially, X was placed on the child protection register and subject to a child protection plan, under the category of physical abuse. She was removed from that plan in April 2005 and then, in 2007, X transferred to the children with disabilities team. In 2008, X became subject to the looked after child review procedure, under section 20 of the Children Act, following a series of short breaks with foster carers, provided to afford M some respite due to the acknowledged fact that she was exhausted and the family was under significant pressure and stress.

7. One of these breaks was with a couple, FC. I am not entirely sure if each were in fact foster carers, but essentially they provided joint care. It evolved effectively into a shared care arrangement, because of M's inability to cope with X on a full time basis. That arrangement lasted from June 2008 until June 2013. That is to say from X being four to the age of nine. It was common ground that this has been the most enduring arrangement, with a duration of five years, in X's life. The arrangement, however, broke down. There are a number of issues raised by the local authority as to M's part in that, to which I will have to come but, on it ending, although the intention had been to find alternative carers, X was in fact placed in Home A, a children's home, about a month later, in July 2013, where she remained, still on a shared care basis with her mother, until June 2015. The level of use was 186 overnights per annum, said to amount to every weekend and five extra overnights in school holidays, ten in the summer.

8. That placement broke down when accidentally X was over-medicated, resulting in a medical overdose and a short admission to hospital. It is in many ways what has happened since then that is said to form the threshold in this case, albeit the local authority points to earlier examples, not just in the course of the two placements already mentioned, but in the manner of their ending.

9. When the placement at Home A ended there were no identified foster carers, albeit M made it clear that she could not care for X full time, so a plan was devised on an interim basis, whereby M could be offered respite in each of two other residential settings, respectively Home B and Home C. Thus, since then, X has divided her time between her home with M and Y, a specially adapted house, purchased on behalf of X, with her Criminal Injury compensation and one or other of Home B and Home C. There are agreed and admitted problems with this arrangement.

(1) It is not ideal that X's time should be divided between three different residential settings.

(2) The two local authority provisions are short term residential units where the maximum permissible number of nights, under whatever status they each have with OFSTED, is 75 per annum. That figure has been exceeded by some margin. I am not sure I was given the exact number, but by way of example, I was told that in 2014 X had some 211 nights at Home A. It is not disputed that each unit has exceeded the permitted maximum, set by OFSTED, which is aware of the situation, but does not appear to be making any particular waves in relation to it, yet at least. The social worker was not able to tell me whether OFSTED has set any date for resolution.

(3) As a consequence of these arrangements, X has not had her own room, save when she is at home. She cannot have a dedicated room in either of Home B or Home C, with her own things around her but, in any event, the local authority says that it is an inherently unstable arrangement that does not meet X's needs. M does not disagree.

The Proposed Options

10. The real problem is the options placed on the table by the local authority, by way of alternative, which are two. Either:

(1) X should live primarily with her mother, in which case she would be entitled to access care in her home. I should say that she has some already, but the local authority says she could be offered much more, as well as a maximum of 75 nights' respite at Home B, or:

(2) X should go and live in foster care, with an alternative primary carer, who has been identified as an experienced former nurse/foster carer and her husband, each of whom has extensive experience of children with disabilities whilst, at the same time, continuing to access regular visits to her mother as she does at present. In essence, what is suggested is a shared care arrangement, which, by its nature, would afford each of the M and the proposed foster carer regular respite.

11. X's mother has rejected each of these proposals because, she says:

(1) She could not cope with X living primarily with her, because of the level of her needs and she cannot tolerate the level of care necessary within her home, to make is sustainable. The level of residential respite, which is offered, would, in the circumstances, be wholly inadequate.

(2) She profoundly disagrees with the local authority proposal of foster care based on her own assessment of X's increasing needs, her own unhappy past experience of foster care for X and the inadequacy of the plan, in any event.

12. X's mother's favoured, or preferred, option would be for X's care, when not with her, to be provided in this way: she would move from her current special school, School A, to a non-local authority maintained school called School C, which also has its own residential home where X could stay, thereby ensuring that all of X's needs, when she is not with M, could be met on one site, the provision for which X has been assessed and accepted by School C, subject to funding.

13. There are clear practical difficulties:

(1) M could not meet the considerable cost involved herself.

(2) Her attempt to persuade the Special Educational Needs Panel to change X's educational placement from School A to School C, has almost certainly failed.

(3) Without attending School C, she cannot access School C's residential provision under its rules.

14. In fact, M's evidence, when she came to give it to me, although she obviously strongly favours School C for what she says are positive, well researched reasons, was that she believes that X's needs are better met in a residential setting rather than foster care. Residential would be a form of care that is likely, in her view, to be more stable, durable, enduring and reduce the potential for disruption, or change, when compared with foster care. By contrast, the local authority believe that X's needs would better be met by a single carer, albeit with help, in a setting where X can form an attachment with a regular carer and benefit from a form of family life which it believes that M's proposals deny X.

15. Indeed, the local authority goes further. It says that M's position is an unreasonable one, so much so that the threshold in section 31 of the Children Act is crossed, opening the gateway to the making of public law orders. In those circumstances, it seeks a care order in respect of X, in order to exercise parental responsibility and regulate the situation which it says it cannot in conjunction with M on a voluntary basis.

X - the Paediatric Evidence

16. It is therefore perhaps a convenient moment to say something about X herself, so that her needs can be understood as best they can be because it is only in that context that the reasonableness or otherwise of M's position can be understood. I can do no better than repeat what her very involved consultant paediatrician, Dr P, wrote, as recently as 4 ^th October. Although Dr P sees X six monthly, and has only been her paediatrician since the middle of 2014, she told me that she in fact sees X far more often than six monthly reviews would imply. She is in X's school every other week and often sees her there She has very regular conversations with X's mother, regarding her needs. In addition, she gets regular information from the community nursing team. So she contended that she was kept very well informed, on a regular basis, about X's needs and progress, between the formal reviews that she herself conducts. I am satisfied, having seen and heard Dr P, that she has a very full understanding, from a paediatric point of view, of X's needs. What she wrote in October was this:

"X is a twelve year old girl who has complex health needs; she has a background of severe, four limb cerebral palsy, after sustaining a significant brain injury as a baby, from a non-accidental injury. Her other associated diagnoses are severe visual impairment; profound learning disability; epilepsy; severe gastro-oesophageal reflux and excess drooling. As a result of the motor difficulties she experiences, she has feeding difficulties and therefore receives her feeds via a gastrostomy feeding tube. Other health problems include recurrent infections, such as chest, sinus and urinary tract infections and constipation."

17. Having dealt with the medication, which I do not think I need to repeat, she continued:

"Over the last few months, X's health needs have increased. She has developed episodes of gasping, retching and vomiting which are happening on a daily basis. Investigations performed have shown her to have severe gastro-oesophageal reflux disease. The two medications outlined above have been added to her treatment. X used to take some food by mouth, but this has not been possible since she has been experiencing the reflux symptoms. She is therefore fully reliant on her gastrostomy feeds for nutrition. X has frequent seizures and it is likely that these are often precipitated by the episodes of reflux; she becomes extremely distressed both with the reflux and the seizures. The reflux is also having an impact on the excess drooling and currently her medication is not making much difference to these symptoms. X has recently received Botox injections to her salivary glands, to help with saliva control; X requires frequent changes of clothing, bibs and, at times, her bedding, when the drooling is severe. X's sleep pattern is erratic and although sleep medication can help, her sleep remains variable. The reflux is occurring mainly overnight and is having an impact on her sleep. X's behaviours can be difficult to manage; she has shown various attention seeking and self-regulatory behaviours, such as biting her fingers, rubbing her eyes, cupping her ear and adopting a cross-legged sitting position.

Due to the sensory issues, X often becomes distressed and it takes time to calm her down, to manage transitioning manoeuvres safely. X mobilises in a manual wheelchair; she is transitioned in a hoist and she requires other specialist equipment, such as seating and bathing equipment, to help meet her needs. X has no purposeful hand movements and communicates in a non-verbal manner. In summary, X has significant disabilities, both physical and learning. She is fully reliant on adults to meet all her needs."

18. I will skip the next sentence and come back to that.

"It has been highlighted by individuals that closely care for her that she requires at least two to one support for transitioning and for all aspects of her personal care."

19. Dr P had written various documents previously for the court and answered written questions prior to the hearing. In April 2016, the issue of overnight seizures was considered, albeit not then thought to be so very frequent. Feeding was, however, becoming an increasing problem; it was uncertain at that stage whether it was behavioural or a swallowing issue. The provision of four nights' respite each week was noted by Dr P, without comment.

20. In August, she wrote that the evolution and increase in X's health needs had continued, along with the diagnosis of severe gastro-oesophageal reflux disease. She noted with approval a suggestion of X being admitted to an establishment such as School C which, by then, had very much come onto M's agenda.

21. Shortly before the final hearing in October, Dr P answered a number of questions and she said, at first, that X's complex health needs, physical and emotional, required an educational placement offering a high level of individualised personal care, of which School C was an example; and two, X needed respite care that could provide consistency in a stable, familiar environment, with familiar carers, who could understand and meet her needs. Considering specifically the strengths and weaknesses of a residential placement, as against foster care, she said this:

"X's health needs have increased of late. A single foster carer is likely to struggle to meet X's needs, unless supported by respite breaks. The severe gastro-oesophageal reflux which X is experiencing currently occurs mainly at night; these symptoms are having an impact on X's breathing and her ability to maintain her oxygen levels. For this reason I have recommended that X is monitored through a baby monitor sound system and at home M does this by providing a constant watch over X at night. When X is in residential care, checks are done at 15 minute intervals; this level of care, both day and night, is exhausting for a single person and X's mother struggles to cope with this. I know that X shows distress when her care arrangements are changed and I am concerned that the frequent changes between different carers, which would include M, foster carer, residential care and school, will result in further distress to X. I feel that X would benefit from the continuity of care that could be offered in the joint educational/residential setting. For this reason, residential care would be appropriate and may be more sustainable, long term, because carers in residential care work a shift system which allows them time to rest."

22. Repeating what she had previously said about the need for support for daily activities and for transitioning, she said:

"For this level of care needs, residential care would be best suited for X, where she would have access to a number of carers at any one time. I would be concerned about X's safety if a single foster carer attempted to manage these activities alone. I appreciate that some foster carers have support from others in the household, but this is a rare situation.

Social Activities: The enriched social environment on offer in a foster care placement is likely to be of little benefit to X. She has profound learning disabilities and severe visual impairment which mean that normal family life will go largely unnoticed to X. I think that the most important aspect of X's care is the provision of carers who are familiar to X and are sensitive to and can interpret her non-verbal communication. This aspect of her care could therefore be fulfilled by either a foster carer or a residential care placement."

23. Asked about the risk, for example, of institutionalisation, she said:

"I do not believe there is a long term risk of institutionalisation for X. I believe the most important aspect of her care can be provided by a balance of care between X's mother and other carers, whether they are foster carers or residential staff."

24. Finally, asked about other matters relevant to the long term plan, she said:

"X becomes emotionally distressed with change. I would like to reiterate the importance of stability for X in long term care, both in school and in either a residential or foster care placement. In conclusion, a number of aspects of X's care can be met either in a stable foster care or residential care placement, but on balance I feel that residential care may have more to offer."

25. Confirming those views and X's current distress caused by the reflux mentioned, Dr P said that whilst both proposals from her point of view were perfectly good, noting the difficulty of determining whether X benefits from family life, she said that the evidence suggested that X does not generally respond to individuals who are close to her, such that at times of severe distress even her mother is unable to comfort her. Therefore, it was her confirmed view that normal family life may well go unnoticed by X.

26. Dr P was cross examined by Ms Wood, counsel for the local authority. She said that the reflux problem may be successfully addressed by surgery, for which she has referred X. The likely timescale to surgery, if the surgeon considers such to be appropriate, would point to it happening probably in round about March 2017.

27. She said that separate from reflux, sleep has always been an issue for X. Its cause, she said, is uncertain, but her lack of sleep regulation, due to her profound visual impairment, has been a long standing feature of X's presentation, despite the use of melatonin to try and regulate it. She said it had had "minimal effect". One feature that was likely to be present was pain and she said the issues affecting sleep were multi-factorial and likely to continue to be a significant issue, even if surgery resolved the current painful reflux.

28. Of the current regime in residential setting of 15 minute checks through the night, rather than the use of a monitor that I have referred to, she said that that was determined at a multi-disciplinary team meeting because, on further consideration, it was felt that an alarm, which would be connected to X by means of electrodes, would be likely to go off so often that it would be very disturbing, in whatever setting X was placed.

29. Asked about the provision for continuing health care funding, she said that it had not been discussed, because there had always been provision for short term breaks. As short term breaks - and she was obviously referring to the care that X currently has, that was her description - were now in issue, she said she thought it was a subject that perhaps needed revisiting. Accepting that X does not receive 24 hour nursing care, rather it is personal care, she said it was nevertheless a very difficult need for M to meet, albeit she was helped on a regular basis within the home by Y. She agreed that the current arrangements were not ideal; she said in that context X does not cope well with change and benefits from a predictable routine. It was her view that only M could say whether X knows if she is at school or at home at any time, given the very severe communication difficulties that X has and she said it was M who picks up her cues best of all.

30. Whilst residential care involves multiple carers - put to her as a disadvantage - she emphasised that there would be a key worker for X, a care plan which would evolve with experience and be available to and, more importantly, applied by all those involved in her care, likely to be a team of regular carers. Regardless of whatever setting is chosen, it will take time for X to settle. Whilst it was possible that X would settle quicker with a single carer, that would be hard to determine, not least as there would still be a number of individuals for X to become acquainted with. In the local authority's proposal, it would include the foster carer and husband, adult sons and, as emerged later in the hearing, care workers.

31. It was difficult to anticipate the likely changes in X's health needs, going forwards, but experience suggested they are likely to increase with physical disability, albeit there would be peaks and troughs. In answer to questions from Ms Monkhouse, on the behalf of X, Dr P said that for most foster carers, faced with the long term demands likely to be placed on them by X, it would be difficult for them to meet her needs in the long term. She said that to ask M to care for longer periods than she does, even with carers coming into the house to assist with bathing and dressing, was not sustainable because it was simply so exhausting.

32. It transpired she knew each of the two other children in the proposed foster placement - I will come back to them - but she was able to tell the court that they each have complex health needs and she said that any normal individual would find the business of looking after X very difficult and tiring. She identified the sleep pattern in particular as a notable problem.

33. That, therefore, is the paediatric evidence regarding X which, in the court's judgment, provides a very clear picture of what any carer would face. That is, therefore, directly relevant not just to welfare, but to the issues the local authority raises as to threshold, to which I now turn.

Social Work Evidence

34. The local authority evidence came from X's social worker, Linda Moore, and Lindsay Hedley, who had prepared a parenting assessment of M. Linda Moore described in writing the end of the placement with FC, in June 2013, the final precipitating acts being those carers registering themselves as next of kin with medical staff and agreeing to an alteration in X's medication without reference to her mother. On X returning to her mother's care, the social worker criticised her refusal to accept in-house support despite reporting herself as being in crisis. Within a month, X had moved to Home A, a placement that lasted for two years. Difficulties arose between M and the then social worker and she criticised M for seeking overnight care in excess of the agreed 186 nights per annum, as well as the additional support that she was offered. The precipitating event that ended that placement was an accidental overdose which necessitated finding alternative provision for X at very short notice.

35. The acute focus is on the period from June 2015 to the issue of these proceedings in March 2016, a period of nine months. Noting professional concerns regarding M's decision making, the key concerns from the local authority point of view were the issues of consistency of care and access to family life, taken in conjunction with communication difficulties that the local authority had with M. The current proposed plan was devised and it was shared with M on 25 ^th October 2015. She said that M had challenged it consistently from that moment to this.

36. Identifying the harm to X, or its likelihood, she points to:

(1) The fact that X in fact spends more time in local authority care than with her mother, yet the local authority has no parental responsibility.

(2) M's report that she can only care three times a week maximum, adding that, "the level of placement breakdown makes it difficult to achieve" and she highlighted what she called "abrupt endings" of placements.

(3) She suggested that M struggles to put X's needs before her own, citing a refusal to put the dog in kennels, so that X could stay in a hotel with the family, whilst the family home was adapted.

(4) She referred to M's inconsistent cooperation with professionals.

37. Criticising the multiple changes in care and the level of respite required by M, accordingly the local authority proposes foster care. In her second statement, the social worker concedes that M can meet X's care needs, but repeats concerns regarding the number of placements that X has had and lack of cooperation so as to maintain a suitable long term placement. Balancing the impact of the options, she said that foster care could offer significant information regarding X's needs on a daily basis, whereas residential care would only be as up to date as the last recording.

38. In respect of foster care, she said that there had been some initial occupational therapy assessment of the foster carers' home, which would likely involve the installation of a vertical lift, possibly a new bed, a new bathing seat, the initial cost of which had been put in the bracket of £19,000 to £22,000. However, she also noted that space within the foster carers' home was at a premium and there was a recognition by the occupational therapist and the fostering team that alternative housing may be necessary in the longer term.

39. In her final statement, highlighting the experience of the identified foster carers, she pointed to:

(1) The presence of suitable adult children in the house who could help with care.

(2) The ability of X to continue to access school at School A.

(3) Activities of daily living could be met by the adults in the house, but with extra help from ID Support Agency, with regard to bathing.

(4) She noted the recommendation of a baby monitor by night, but that was of course overtaken by Dr P's evidence about that.

(5) The foster carer would have access to X's Motability car.

(6) There would be no formal respite needed, save as a last resort, because the shared care arrangement with X's mother would make it unnecessary.

40. In her oral evidence, she provided more information about the placement. There are two younger children there; the older one is a long term child, with a form of cerebral palsy, said to have very similar issues to X. He is apparently younger than X, albeit I was not given his age. The younger child is an interim placement. He suffers from Noonan syndrome. He is present subject to care proceedings, with a final hearing scheduled in January 2017. In respect of him, the local authority plan is permanence by way of adoption. I was later told that that is in fact to be a time-limited search for an adoptive placement. I was also told in closing, but not in evidence, that if X moves to foster care, that child will be moved out of the foster placement - a proposition that seemed surprising given, first of all, how long he has been there and, secondly, the delicate stage in his own situation. Of course, pending the final hearing, there can be no certainty about anything.

41. She confirmed that the viability of the property occupied by the foster carers which I understand to be a form of social housing, is uncertain. But she was able to confirm that, as matters stand, it is the only placement in prospect.

42. The social worker was cross examined by Mr Gray, who represented M at the hearing. Asked about the placement with FC, on which much reliance was placed because of its endurance of five years, her ultimate evidence was that she believed that it could have been sustained with further support, but she was unable to say that it was M's fault that it ended. Asked about the placement at Home A and the manner of its ending, she said in terms that M had not acted unreasonably in seeking alternative accommodation. Asked about the arrangements since then, save for M's disagreement with the proposal for foster care, she said she was unaware of any attempt by M to change those arrangements.

43. So, turning to the threshold and asked about emotional harm, she said that there must have been a level of emotional impact on X with a large number of changes, albeit she did not believe that X had suffered emotional abuse due to M's actions in that or any other regard. She thought that X would suffer abuse in the future due to the inconsistency of the arrangements, there having been no firm plan in place, she said, for three years. That is to say, back to the time when X left FC.

44. Although she said that M's proposal would afford X very limited access to family life, she attributed that to the likelihood of multiple care givers, aggravated, she thought, by a high turnover of staff. She accepted that she could not say, however, that children in residential care suffer significant harm per se. Indeed, she said that M's proposal had been a firm plan that was a perfectly proper one to pursue, "I just think our plan is better".

45. There was then exploration of M's alleged lack of cooperation. First there was reference to the difficulties she had with various social work staff; in July 2016, for example, she had not wanted to speak to a senior member of the staff, Lisa McGuigan, but the social worker accepted that M had lodged a complaint against that individual, which had been upheld and not challenged subsequently. Reference was made to an angry telephone call to another member of staff, Pat Marshall, which was conceded to have occurred at a time when M was unwell and known to be unwell. She said it was frustrating for M but nevertheless was evidence on her part of non-cooperation. She said there had also been arguments over planning, in particular the level of respite the local authority was offering and that all made it very difficult to deal with. She said she did not agree with Dr P's assessment of the relative lack of benefit of family life arising from M's proposal, based on X's awareness of her mother. She said that she assumed that X would develop an awareness of her foster carers. She said it was reasonable to assume that M knew best what X needed, that she had done much thoughtful research and that the plan M believed in was the one likely to work best. Having asked rhetorically what would happen if there was an incident, she was obliged to agree that there was no reason to think that incidents were more likely in residential than in foster care.

46. Lindsay Hedley, as I say, carried out a parenting assessment back in June. This is a very detailed document, which, amongst other things, shone some light on the effect of X's injury on M herself. Referring to M's treating psychologist, who identified her post traumatic stress disorder, anxiety and depression, Dr PS said that they related directly to the trauma that X had suffered. Nevertheless, they did not impact on her parenting capacity, her insight, her cognitive functioning, her judgment, her decision making, or problem solving ability. The social worker appeared to challenge that view, although the example she gave of an inability to solve a problem was in the context of severe sleep deprivation, and not any of the factors identified by Dr PS.

47. Agreeing that X needs additional care away from the family home, she said that the local authority does not have a residential provision and so foster care is the only option that would give M the flexibility she seeks. She positively advocates foster care, because of the nurturing effects and stability offered in which X could build attachments. The level of care required outside the home exceeded that within, hence the need to share parental responsibility, in a case where the team manager asserts that X has, by M, been "denied the choice of consistent care givers" and M has prioritised Y over X, in her "relinquishing" X's care, often at short notice.

48. Her BS analysis reflects this, making the assertion that foster care has been the most settled and happy of X's placements. That latter assertion was deduced from records because she said she only became involved in April 2016. In cross examination, she conceded that it was a matter of interpretation on her part. She disagreed with Dr P with regard to X's ability to make her likes and dislikes known. She was challenged about an adverse comment that was described as "potent", when M, in November 2015, over the telephone, said that a residential setting would be able to "hoy (a Geordie word meaning, literally, throw) X in the sensory room" when upset, as a negative remark, that demonstrated M's lack of concern for X's emotional wellbeing. She conceded it was not M's usual attitude, nor had she spoken to M about it, in circumstances where, before criticising her, she accepted she should have done. That was the local authority evidence.

M's Evidence

49. M made four statements challenging the local authority case. She denied that the foster placement with FC was as successful as the local authority maintained and said of Home A that it began, at least, really well. Indeed, it was the local authority that had planted the idea of residential care in her mind in the first place, Home A being X's first experience of it. She said it was something she had considered positively ever since X had gone there, despite the unhappy circumstances in which that placement ended.

50. Although she has researched and very much supports School C, as the preferred option, she maintains more generally that residential care is the more appropriate type of placement. Although X is doing well at School A, she does not think it is a good long term option: it lacks the range of therapies, the staff with specialist knowledge of cerebral palsy (in which it is well known that School A excels), and is more directed at educational rather than sensory work. It was those issues that had led her, in the first instance, to School B, and then School C. I should mention those are historically two separate organisations. They are now under the same ownership or management, but they operate as separate entities.

51. She challenges the local authority case regarding foster care, basing her opposition on experience. She, in particular, denies that X was as happy with FC as the local authority asserts, describing her as coming home lethargic, really tired and unhappily so, just wanting to sleep. She said that that was so, despite the fact that FC had been a couple who, in addition, had access to outreach support. As important, the foster carer was exhausted, despite that support. She said X needs 24 hour care, so residential care in fact provides more stability and structure and the rotation of staff will remove the element of exhaustion. It will also afford X more opportunities than a home environment, pointing to the wide range of facilities, for example, that are offered by School C.

52. M had met the proposed foster carer. She described her variously as "nice", "pleasant" and "lovely". But she was nevertheless not convinced that she was the person who would be able to meet X's needs as she would wish them to be met. She acknowledged that she, as X's mother, would struggle to support the placement. She said that elements of the discussion she had with the foster carer surprised her. In a case where it is the only option, other than living with her full time, the foster carer said that she had not yet agreed to accept X. Additionally, the foster carer was to be the only other female in the house and M asked the question, what would happen if she were to be ill? She also said the foster carer was surprised at the apparent level of need that X had.

53. Separately, M agreed that she had had difficulty working with members of the local authority staff. She attributes the break down in relations with Linda Moore to the fact that she was then ill, was asking for help and was told she did not qualify for more respite. She said of that:

"I wasn't asking for respite, I was asking for help."

54. But she denied that she had chopped and changed arrangements. She said that she did not think that the local authority appreciated just how hard it was to provide 24 hour care. She described the fight that she had had to ensure that X got the 24 hour checks that she now has at Home B - a reference to the issue mentioned by Dr P regarding the checks secondary to reflux.

55. Cross examined by the local authority, she conceded that the present arrangements were not ideal and needed to change. She said, however, that 75 nights' respite was insufficient, even with care at home. She went on to describe just how difficult it was to be in the house and to ignore, for example, X having a fit in the bath when the carers came in, as well as her inability to sleep when X is at home and up all night - and I will come back to this - pointing to just how attuned she was to X's needs, really making it impossible for her to ignore what was going on and what care had been provided by others, when she was present. She said that the foster care proposal did not take into account X's increasing health needs over the last two years, which she said had not been assessed.

56. She denied not being child-focused in her decision making, but she accepted that she had difficulty with some of the local authority professionals. She accepted that there had been difficult moments, but attributed them, for example, to an occasion when she was left for 31 consecutive nights without respite; being introduced, for example, to a foster carer called D, who was unaware, it transpired, of X's needs and being put under pressure to accept that person, because of the want of alternatives. Various examples were taken from the chronology, which she either could not remember, or thought had been misinterpreted.

57. Whilst X does not have her own room in Home B, she has a number of carers who know her well and although staff changed she did not see that as a disadvantage, explaining that in residential care X would have a key worker who would be able to draw on a pool of workers which would give X variety and would be good for her, because X in fact enjoys the interactions of different carers. So whilst she has no one who is as familiar to her as her mother, she enjoys the variety that she has from a pool of carers who regularly care for her.

58. By contrast, respite within M's own home, with carers coming in, would not, in her view, be beneficial respite. She describes, as I have mentioned, her inability to sleep, whilst somebody else is caring, not least because of the noise that X makes. It is, and has for a long time, been her habit to bang her bed throughout the night. She knows which part to bang, to make a noise and which part fails to produce a noise. She said X is happy doing that. She described it to me as X "partying all night". She said whilst no nights are ever the same, "she just bangs and bangs, she enjoys it". Plainly, it was her view that that was something that X needs to be allowed to do and she supports it.

59. The current issue is of X being awoken by her reflux and she described how X sits up, arches her back, is seemingly in agony and cannot be comforted, something that is very distressing to watch. She described that now that X is not fed at all by mouth, she is fed three times daily by gastrostomy. Each occasion takes an hour either side. She said X is never left alone but she confirmed that X, she believes, does know her and her brother, Y.

60. M does not believe that School A is in fact meeting all of X's needs and was reinforced in that view by her observation of the schooling in School C, which she though was better suited to X's requirements. Asked about communications generally, she accepted it was key to a successful partnership. That said, she denied having any issue with the staff at either Home B or Home C, who regarded her communications as good and comment on her good state of preparedness. She had no difficulty raising issues with them and, indeed, they acted on them.

The Children's Guardian

61. The final witness was the children's guardian. She filed one report in August. In it she concluded that School C provided the best outcome for X. She agreed with M. Of her proposal, she said this, at paragraph 11:

"M has presented a clear and well thought out proposal for X to be placed at School C. She is a dedicated parent, who has had to overcome the most dreadful life circumstances following the injuries X experienced from F. I have huge admiration for M's efforts to secure the best outcomes for X and her commitment to providing care for her daughter remains steadfast."

62. Nevertheless, the guardian supported the making of a care order to enable the local authority "more actively" to co-parent X and provide some stability, despite also noting the local authority view that M had "been a very stable care giver to X and has always been present during X's life". She felt that the balance of care had nevertheless moved towards the local authority.

63. Not denying that foster care is a viable option, with benefits that have been identified by the local authority, she doubted it would minimise the number of carers to whom X would be exposed, because of the need for respite, noting X's needs were likely to increase, making even greater demands on respite. Such that, "there is little to choose from" with regard to the number of carers, either in foster care or a residential setting.

64. Her criticism of M is to be found at paragraph 34 of her report. There is, she said, little evidence that M could work with the local authority. In support of that, she cited the failure of M, following a meeting regarding School B in May that had been facilitated very helpfully by the social worker, to disclose until a meeting the following month, in June, that she had changed her mind about that school, in favour of School C, something that M had failed to share with School B. Nevertheless, her recommendation was for a care order with a revised care plan of placement at School C and a contingency plan of foster care if School C was disrupted.

65. She told me that X's highly complex needs meant that M would struggle with as little as 75 nights' respite per annum. She said M is exhausted, she does not sleep, she is required to have and does have a very high level of vigilance for X, particularly with regard to the reflux. Whilst X's educational needs were met, residential care would probably offer the most enduring environment, in which, over a long period of time, a body of knowledge would be built so as to meet X's needs consistently, and in a stable environment.

66. The local authority pointed to the enduring nature of foster care with FC, which the guardian agreed, but also observed that two foster carers could equally make the mistake that was made at Home A. On its own this would not be a reason to rule out residential care. Equally, she accepted, that X's social care is capable of being met by a foster carer.

67. Cross examined by Mr Gray, she explained her criticism of the failure by M to communicate her change of mind between the two institutions, School B and School C. She told me she had very recently, in addition, spoken to the proposed foster carer. That lady had expressed concern about M's stated inability to work with her and unwillingness to make a go of it. She has also, however, made it very clear that she had neither accepted, nor rejected, the placement. Although the small boy in her care had been placed with her in the space that had previously been set aside for X, she did not see him moving on in the short term and she said that if X goes to live with her, at the very least an extension, if not a new house, will be needed. She also commented that the occupational therapy assessment was incomplete.

68. The guardian expected X's needs to become more complex. The ability of M to work with the plan increased its likelihood of success: the converse was also true. She commented on the social worker who was unable to open her mind to residential care and a mother who was not open to foster care, as being central to the issues that had brought them before the court.

69. I then asked her what her recommendation at the conclusion of all of the evidence was. She said that she thought that a foster carer might meet X's needs, in the short term; the carers identified are said to be exceptional, but given the amount of care that they would provide, they would need respite care. M would be a respite carer for them, but could not be a reliable provider of the likely level of respite care that would be required and it therefore seemed, she said, that the reality was that the inevitability of third party respite would not be able to be ruled out.

70. Of the plan she said:

"I am still not getting a sense of a coordinated plan from the local authority, even as between the fostering and the district teams, communication is not there."

71. She said she was not sure if the local authority itself knew what the next stage was and she questioned how viable a move for the foster carers would be. She questioned what the views of the professionals concerned with the other two children in placement would be if a move was to be proposed. She said:

"I don't think the care plan is complete and with such an insecure one, I would be reluctant to recommend finalising."

72. She sought clarity around the foster carers' position. She, of course, knew very little about the other two children and was anxious that there is consultation with the professionals concerned with them and likewise so far as occupational therapy, housing extension or a move, there was a complete lack of clarity.

Submissions

73. I have recited the evidence at some length because this is a difficult and most unusual case. Much of what I have touched on could be said to relate to welfare issues, but it is the difference of views between M, the local authority, the guardian and Dr P, that is directly relevant to what is perhaps the central charge laid against this mother, that she is behaving unreasonably and therefore difficult to work with, to the point that the local authority says it has to share parental responsibility with them.

74. Care proceedings, of course, involve two principal questions. First, are the threshold criteria for making a care order under section 31 of the Children Act satisfied? Secondly, if so, what order should the court make? Section 31, sub-section 2 provides:

"A court may only make a care order if it is satisfied:

(A) that he child concerned is suffering, or is likely to suffer significant harm;

(B) that the harm, or likelihood of harm is attributable to:

(i) the care given to the child or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give him, or:

(ii) a child being beyond parental control."

75. It is very much disputed that the threshold criteria are here made out. If they are not, the court does not have the jurisdiction to consider the second question. That said, it is the proposals, under the second question, that are at the very heart of the dispute and so it is nevertheless necessary to consider them in the context of threshold, because they inform the stance adopted by each of the local authority and M.

76. In this case, the local authority says that M's stance is an unreasonable and unrealisable one:

(i) First of all, there is no health reason, it is said, for a residential placement;

(ii) X's educational needs are being met by her current provision;

(iii) the amount of respite that M requires necessitates an alternative home;

(iv) M's refusal to countenance its proposal is unreasonable;

(v) M does not know better than the social worker;

(vi) by insisting on residential care, refusing foster care and support in the home, she demonstrates a lack of insight into X's needs, because X has, by M's refusal to accept foster care, been exposed to unpredictable arrangements lacking routine, as well as failure to cooperate with the local authority and thereby exposing X to the risk of emotional harm.

77. In the alternative, by refusing to accept the local authority proposal, she is likely to expose X to a risk of neglect, because M cannot care for her for more than two or three nights, which is less than 50% of the time.

78. By contrast, Mr Gray, noting what he describes as a "non-standard" use of care proceedings, points out that the local authority offers two options and does so on the basis that its decision that foster care is a more natural environment, has been pursued to the exclusion of everything else. It is presented to the court as a binary approach but it is not a realistic choice of options because it is a fact, and the local authority knows it, that care by a single mother, even with support in the house, for all but 75 days of the year is not a realistic option. Rejecting it, M has not behaved unreasonably.

(1) She has very considerable knowledge of X's needs.

(2) She has the greatest experience of caring for X and meeting those needs.

(3) She knows the struggle the only other foster carer has had.

(4) She points at the significant increase in X's needs since that experience, as supported by Dr P.

(5) She reasonably questions whether a foster carer can provide more consistent and sustainable care and how realistic the placement in fact is.

79. Furthermore, although education is a significant factor, it is arguably well met and change for change's sake is to be avoided. However, education cannot be looked at in isolation. There is, said Mr Gray, a want of a holistic approach. So if the current educational provision can only be met with what might be called unsatisfactory living arrangements, that would dictate a revisiting of that issue which in isolation appears to be well met.

80. Quite apart from the unsatisfactory care plan, these matters all point to a failure of the local authority to satisfy the threshold:

(1) Far from lacking insight, M is in fact very insightful.

(2) There is no likelihood of emotional harm.

(3) The failure of foster care and Home A cannot be attributed to M.

(4) Her inability to meet X's very considerable needs cannot be a basis for threshold; she seeks and obtains support as required.

(5) Her alleged non-cooperation on its own is not a factor likely to cause suffering or the risk of suffering and M's reliable cooperation with those having immediate responsibility for X's care is a sufficient answer.

81. The guardian positively asserts that M's plans are well thought out. Beyond her failure to communicate her change of view from School B to School C, it was difficult to see what more this mother could have done. The guardian accepts that M knows X better than anyone else. It is not possible for others to understand the demands on M and it is to her credit, and demonstrates insight on her part, that she recognises that she cannot provide full time care for her.

82. Analysis of the local authority proposal, as it emerged in closing, points to the provision of multiple care givers, particularly through the night, to meet the issue of X's profoundly disturbed sleep, thus undermining one of the mischiefs that the local authority seeks to avoid, multiple care givers. All that said, the guardian has concerns regarding M's ability to work consistently with the local authority and is of the view that the level of shared care points also to a sharing of parental responsibility.

The Legal Framework

83. I was taken, perhaps surprisingly, to no authorities by counsel. I have already set out section 31, sub-section 2 and identified the questions for the court. Central to its determination is the issue of harm, or its likelihood. Section 31, sub-section 9, defines harm as:

"Ill-treatment or the impairment of health or development."

84. The balance of the definition does not apply here. The plain words of that sub-section represent, in the context of this case, a high threshold in the court's judgment. Of course, as the Supreme Court decided in Re J (Children) (Care Proceedings: Threshold) [2013] UKSC 9, the likelihood of significant harm means no more than a real possibility that it will occur. Something that was acknowledged to be a relatively low threshold. But, as was said in Re J itself, the conclusion to that effect must be based upon a fact, or facts, established on the balance of probabilities, by the local authority. As Hale LJ, as she then was, said in Re C & D (Care Order: Future Harm) [2001] 1FLR 611:

"A comparatively small risk of really serious harm can justify action, while the virtual certainty of slight harm might not."

85. In the seminal case of Re B [2013] UKSC 33, when the Supreme Court revisited this issue, the Justices were unanimous in their view that the court should avoid attempting to explain the word "significant" in the context of "significant harm", reiterating that it is harm which was "considerable, noteworthy or important", thus requiring something more than commonplace human failure or inadequacy. Of course, the harm does not have to be deliberate or intentional: it is enough that harm, or its likelihood, was attributable to the parents, a deficiency in parental care, rather than parental character.

86. In each of those cases, in that context, the senior courts reminded themselves of, and quoted with approval, Hedley J's well know words in Re L [2007] 1FLR 2050,that:

"Society must be willing to tolerate very diverse standards of parenting, including the eccentric, barely adequate, and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, whilst others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the State to spare children all the consequences of defect parenting. In any event, it simply could not be done."

87. But does what the local authority here asserts, even if true, amount to X having suffered ill-treatment, or being likely so to suffer, or does it in fact amount to a distortion of the statutory criteria I have set out? In order to answer that question, I need to look at the very specific matters alleged.

88. The first is the allegation that M lacks insight into X's needs. I have to say that I found this allegation to be deeply unattractive in its advancement. Not only does the children's guardian positively advocate that M knows X better than anyone else, she asserts, with the support of Dr P, that M's plans - or perhaps it should be said ambitions - for X are not just insightful, but, on balance, likely better to meet X's needs. This guardian has had her own first hand experience of residential care, having begun her career, coincidentally, at School C, the very establishment under consideration, so is well placed to consider its merits against other forms of care. Although Dr P was challenged on the basis of relatively limited knowledge of X, that really fell away under cross examination and was not relied on in closing. In endorsing M's preference, Dr P provided a well-reasoned, sound basis from the perspective of the treating paediatrician who had, I am satisfied, a very profound understanding of the issues that X presents.

89. I found Dr P to be a conspicuously careful, reflective witness, who knew her patient well and, based on that knowledge and her own professional experience, was able to provide very considerable support for M's view of the best care arrangements for X. At the same time, whilst she did not dismiss the viability of foster care as an alternative, she did provide a solid basis for concluding that the merits of care in a family setting were likely to be of limited value to X, while pointing to the level of support, hence the need for alternative carers, that would be necessary to sustain such a placement.

90. M recognises the unsatisfactory nature of the current arrangements. She recognises the limits on her ability to provide care. Far from lacking insight, it seems to the court that she has it in spades. Even where she disagrees with the local authority, she nevertheless continues to work positively with those who are caring for X.

91. In those circumstances, the court could not possibly find that M lacks insight into X's care needs. To do so would be a perversion of the truth which is, in the court's judgment, the converse and really amounts to saying that because a mother does not agree with the local authority, she is not insightful. I reject that.

92. The second allegation is the risk of emotional harm to X due to the instability of care to which she is currently exposed. There is no issue between the local authority, M and the guardian that the current arrangements are unsatisfactory. It cannot be in X's best interests to have three homes. That comes about by virtue of, in one sense, an artificial limit on the number of nights at Home B or Home C, and on the other a legal limit that OFSTED has imposed. It is therefore beyond the control of either M or the local authority. On the other hand, that a legal limit is thereby imposed in respect of those two establishments, does not equate to that limit having any merit from X's welfare point of view. That is one problem.

93. Another problem is that the arrangement prevents X from having her own permanent room, with her things about her. In most cases, that would seem to be a very obvious problem, although in this case there was little or no evidence that it is in fact a problem for X. I am sure it causes a lot of extra work, moving stuff from place to place, but I was not really told of anything that suggested that it is in fact a problem for X herself. It was not suggested, for example, that she does not settle because she does not have her own room or things around her or that there is any evidence of distress caused by the lack of such. The complaint was simply that it reduces stability, which would seem likely in most cases, but without evidence that it is in fact having that effect on this particular child.

94. There was before the court no evidence that X's welfare has been adversely affected by such changes. The issues that X appears to have are more related to her increased medical needs, especially her reflux. I was struck by Dr P's decidedly understated observation that the arrangements were not ideal. Not being ideal, without evidence of harm, ill-treatment, or the impairment of health or development, falls, in the court's judgment, far short of establishing threshold.

95. I propose to move past three for the moment to four, which relates to the social care assessment of October 2015, as identified X's limited access to family life. That allegation is positive, in the first instance, on the basis that two or three nights a week at home would suggest limited access to life with M and Y. The local authority say that:

"M is unable to empathise with the importance of X's sense of being part of family life and a sense of belonging to give her an identity beyond her disability."

96. When one looks, in the same document, at M's reasons for limiting the amount of care she can offer, they include the sheer exhausting nature of the process of providing 24 hour care and the fact that M also has responsibilities to Y, who has his own demands and needs. They are the needs of a normal 14 year old boy and her ability to enable him to do such normal things as going to football, something that is near impossible when X is at home because of the constant attention that she requires. It is not, for example, a case of M seeking to prioritise her own needs and interests above those of either X or Y for that matter. She has no interests other than her children that I can see. Indeed, the greater concern is the extent to which Y's needs are subsumed by X's. The social worker even comments that M would herself:

"...benefit from opportunities to explore her own interests and begin to have her own experiences again...."

without for a moment explaining how she can do that, meet the needs of her two children, and provide the family life for X which the local authority says is lacking. The social worker continues:

"It is positive to note that M identifies herself first as a carer. However, it is also recognised that M needs to have an identity outside of being a carer and a mother to her children."

97. To which one might rhetorically ask how? Why would one criticise a mother for identifying her overwhelming purpose in life as being the need to meet the very different requirements of her two children? Quite apart from this irreconcilable line of argument, there is the critical question as to whether any shortfall in X's access to family life is in fact causing X to experience ill-treatment or impairment of her health or development.

98. There was a difference in view between the social worker and Dr P in this regard. The social worker found herself employing a double negative to explain her point of view which is almost always a sign of a lack of confidence in the statement contained within.

"We cannot assume she has no awareness of what is going on around her."

99. Pointing out that X is aware of the M's presence, she assumes that X would develop an awareness of others over time. Whether or not that is correct - and I am not sure that M necessarily disagrees - it falls short of demonstrating that X benefits from family life. She does benefit, by consent, from consistency of care. M, whose evidence in this regard I would accept, was at pains to point out that despite needing consistency, she also likes the variety and contrast that a team of care givers offers her. Consistency does not mean necessarily a single carer. But, even if it did, it is not the same as pointing to the merits of family life, simply the desirability of consistency and familiarity, which would not import the requirement of a single or even pair of family care givers.

100. Dr P, with whom Lindsay Hedley also disagreed, albeit had but very recent knowledge of X, thought otherwise. Ms Hedley, pointing to signs of happiness and unhappiness in certain settings, which X signalled by gesture, nevertheless was not focused on the merits of family life, as distinguished from care givers who met her needs. By contrast, Dr P, concluding that family life went largely unnoticed, pointed to the inability of M to comfort X, despite being very attuned to her needs, the fact that X does not respond to individuals close to her. She added that it was hard to say whether even X knew if she was at home or school, so limited are her communication skills. Problematically, from the local authority point of view, it was Dr P's view that the only person who really knows the answer to this question is M herself, something about which M was not in fact cross examined.

101. Having weighed up this evidence, I find the reasoning of Dr P to be highly persuasive. Providing, insofar as she can, concrete examples, her evidence is to be contrasted with that of the local authority, that it cannot be assumed that X has no awareness. Whilst I would not argue with that proposition per se, because she plainly does know her mother, it falls short of establishing that she is suffering from a deprivation of family life that, in the scale of her overall needs, would amount to ill-treatment, or the risk of impairment to her health or development.

102. The final allegation, number 5, relates to the unwillingness of M to cooperate with the social worker in making appropriate or sustainable plans. There is no doubt that over the years there have been difficult relations between M and social workers responsible for X's care. There are examples peppered throughout the chronology of fallings out, not speaking at all at times and communication difficulties more generally at other times. It is, in the court's judgment, potentially unfair to focus on individual incidents over the years, many of which are not reported by direct evidence, despite threshold being in issue albeit there have been issues directly between M and the current social worker.

103. Looking at them as a whole, they boil down, in the first instance, to:

(i) Issues where M has been seeking help for a particular reason and for whatever reason the local authority has not been able to offer it; for example, 7 ^th June 2013, 26 ^th January 2015, 19 ^th August 2015.

(ii) Issues where M and the local authority have disagreed as to what the plan should be; for example, 26 ^th July 2013, 10 ^th June 2015.

(iii) Finally, issues where M complains that the local authority is not in fact meeting X's needs; for example, 24 ^th August 2015.

104. It is characteristic of many entries concerning such difficult conversations that M is either unwell or overwhelmed by the task and, consequently, emotional and upset. Although the local authority characterises her as "unreasonable", the instance that was singled out in the parenting assessment, an alleged refusal to put the dog in kennels to enable X to be cared for by M in a hotel whilst her home was being adapted, I reject. It happened in January 2015. Major building work was going on to alter the family home. On M complaining, not unreasonably, that she could not care for X whilst living in such circumstances, the local authority suggested that they go and live in a hotel. M said it would still be too difficult, with two children, including of course X, and a dog. That was the context of the suggestion of kennels. Having read about X's needs, the level of care, the equipment that she needs, the requirement to mobilise, transition in a hoist and a need for help with all aspects of her care, the sole aid that is recorded as being on offer amounted to provision of a ramp for the wheelchair.

105. Having heard the social worker and M, in the court's judgment, the refusal to go to a hotel was nothing whatsoever to do with the dog. I have no doubt that the dog was mentioned but, selectively and unfairly, it has been singled out as the justification for an argument that M was being unreasonable when, in reality, M's response was wholly reasonable.

106. It is striking, considering the instances in which M's frustration at the overwhelming task she faces is evident, even from the chronology, that this is not a woman who is being difficult for her own self-centred reasons. She is not prioritising herself or even Y over X. She is fighting for what she believes is necessary to meet X's needs and there is sound, solid evidence that in doing so her stance is reasonable, from both Dr P and the guardian. I have no doubt that the sheer exhausting nature of the task leads to heightened emotion, occasional intemperate outbursts and, at times, a breakdown in relationships. Reasonable people can, as the ultimate question in this case demonstrates, disagree. The issue is whether they disagree for an unreasonable cause. It is characteristic of M's issues that they all relate to meeting X's needs.

107. Insofar as the local authority seeks to rely on the longer history I find this:

(1) The placement broke down with FC, with the inappropriate and highly unfortunate assumption, by them, as foster carers, they were next of kin, and using that status to change X's medication without reference to M. They had no right to do that: they had no parental responsibility, nor did the local authority and there was no justification for taking such a fundamental step without involving X's mother. It was a presumptuous assumption of authority they did not have.

(2) It is clear that the placement was under severe strain. The local authority says had it not ended, they would have been offered additional support. That is, in the court's judgment, a moot point, particularly if one looks at the difficulty M reports in obtaining additional support. One only has to read what FCM wrote for a looked after child review in May 2013, shortly before the placement ended. Having set out a series of issues, one of which flowed from the medical issue that I have referred to, she wrote this:

"We care for X dearly and want to continue to provide a high standard of care. But she is a highly complex child, with high needs, and we have been left feeling on many occasions physically and emotionally exhausted, striving to provide high quality care, whilst receiving support on an ad hoc basis. Under these present circumstances, we cannot continue to meet X's needs well; issues have to be addressed urgently; the impact of no equipment, no support should M be unable to care for X, X's poor eating and sleeping and the confusion of X's medication is having a very detrimental effect on our family. The decision needs to be made by the local authority if they want us to continue to care for X and if that is the case then assessment and investment into the placement is required immediately."

108. It was not M's unreasonableness that was the ultimate issue, it seems to the court. It was the local authority's unwillingness, at least up until that point, to invest. Now there are other matters that can be taken from the report, but it is now three and a half years old and X is much older and her needs, I find are significantly more complex.

109. It is striking to note that the Home A placement was in large measure successful for two years. There is no question that M raised issues, but they were all dealt with. It was not intended to be a long-term arrangement, but it became so and one questions whether it would have ended at all had X not been overdosed. The social worker's evidence was ultimately clear that M is not to be criticised for either of those placements. From the court's point of view, the durability of the foster placement - five years - is of limited value, given the length of time that has elapsed since it ended, and the increase in X's needs since then. I certainly do not regard it as providing any reliable indicator of a success of a future foster care placement, especially if it is one that M feels unable to support.

110. What is clear following each of these placements and the prolonged interim arrangements, is that M has been able to work directly with the professionals who are caring for X, whether in Home A, Home B, Home C, or School A as well as Dr P. Insofar as there is conflict, it relates predominantly to what the local authority will or will not offer. This is not a mother who is unable to work with professionals: the evidence points to a very specific issue with one particular group of professionals who are not in the front line of providing care for X.

111. The inability at times to work with the social worker is doubtless irksome, it must make planning more difficult, but only in circumstances where there is a complete lack of flexibility on both parts. Does it represent ill-treatment, or the impairment of health or development? No such evidence has been laid before the court, in my judgment. The difficulty is compounded by the fact that key professionals, Dr P and the guardian, not only characterise what M seeks - the heart of the issue with the local authority - as not unreasonable, but supported as wholly reasonable and preferable to that which the local authority propose. If holding out for what M reasonably maintains best meets X's needs, in the face of the alternative local authority view that is regarded as less desirable by those professionals, albeit not unsuitable per se, is to be characterised as "unreasonable" and the cause of the inability to work with the social worker, that is surely a perversion of the concept of harm, or its likelihood.

112. That therefore takes the court back to the third finding sought, which is the real stumbling block. Is M insisting on an inappropriate, unviable care arrangement, thereby exposing X to further instability and potential break down? By reason of all that I have said thus far, I hope it is clear that I reject outright that M is insisting on inappropriate care arrangements. There is powerful evidence from Dr P and the guardian that they are entirely appropriate and the local authority does not, in truth, say they are inappropriate, just that their plan is the better one. Are the unviable? Well, as matters stand, insofar as it is focused on School C, they are. M has not formally been turned down by the Special Educational Needs Panel, albeit she does not argue that the Panel is expected to reach any other conclusion. This takes us into realms that are arguably more matters of administrative law, so that the Family Court has to tread very carefully.

113. The SEN Panel, I am told and accept, will not sanction a change of educational provision unless it is necessary to meet X's educational needs. Presented with a report from School A, and indeed the Children with Disabilities Team, that School A does in fact meet X's educational needs sufficiently, the outcome might be thought to be an inevitable one, as Mr Gray conceded. Without breaking that logjam, no progress can be made. The local authority says it has no other residential placement to offer which would enable X to access School A, whereas foster care, which I believe, although I am not sure I have been told, to be within the City limits, would enable it to be maintained. Thus, the educational provision, on this analysis, is in fact driving the welfare/residential issue. Foster care is, says the local authority, the only solution that enables the continuity of education and therefore minimises disruption for X. That is, of course, an entirely desirable objective. But the question the court has asked itself is whether it is the right approach in this complex case.

114. X's needs are such that it seems to the court that it is not possible to consider one aspect of her welfare needs, i.e. education, without considering other aspects of her welfare needs, i.e. her need to spend time with her family, but at the same time have adequate provision for alternative care, given the extent of the needs that have to be met. Thus, if education, by itself, is ideal, that is not, without more, a reason to direct a form of care or respite that is arguably less than ideal. As was said in closing, without local authority support, it is hard to see how the SEN Panel could come to a different view, but the Panel is, I fear, looking only at half of the picture, because of the local authority's insistence that its view of the other half is the only one. It is not. But by so insisting, it is not only almost certainly guaranteeing M's failure before that Panel, it has, in the court's judgment, failed to consider all of X's needs, holistically.

115. Although I stray yet further into welfare, I am so concerned about the local authority's plans that, even were I to find the threshold proved, I say here and now I would not approve its care plan for these reasons:

(i) Although there was but the most casual evidence about this, I remain unconvinced that X's needs do not merit assistance by way of continuing care from the NHS commissioning body. Ms Hedley certainly suggested to me that she doubted that X would meet the criteria, but given the issue as it now presents itself, Dr P plainly saw merit in looking at this specifically now that the local authority says that the current arrangements cannot be sustained, something that has not been done.

(ii) I have the gravest reservations as to the viability of the plan for foster care. When the court is being asked to make a care order, as it is here, normally one would consider foster care in principle, without regard for a specific, particular placement. That is because the law is very clearly established that once a care order is made and the court approves the plan - here foster care - it is for the local authority to make decisions it considers meets the child's needs. Parents, whilst retaining parental responsibility, would in practice struggle to oppose changes which the local authority, from time to time, might seek to make. But the most obvious change one can anticipate is the change of foster carer, if only because the circumstances of foster carers change and the local authority has little or no control over that. This is not a normal case. Indeed there is only one foster placement in prospect. If for whatever reason it cannot be brought about, there is no alternative plan.

(iii) There is good reason, on the evidence, to fear that it is not a plan that can be brought about in a way that will meet X's needs.

(a) It was only in closing that it was said that the proposed foster carer has in fact agreed to care for X. All the other evidence, including a very recent conversation with the guardian was to the effect that she had not yet said yes or no.

(b) I suspect that this, no doubt, immensely experienced carer was influenced by M's resistance to it. A shared care arrangement such as is proposed would only work with an understanding that would make it possible. There was very clear evidence before the court of the need for any placement to have M's support.

(c) The practical arrangements are, at best, in their earliest stages of preparation, despite the foster carer having been identified many months ago. I was told that a full occupational therapy assessment was not possible without X in place. I reject that entirely. Over more than thirty years, I have seen very many occupational therapy assessments, specifically in relation to children with conditions very similar to that of X, carried out on a hypothetical basis. My suspicion, heightened by what was said in closing, is that the local authority has simply not been prepared to make the necessary investment.

(d) Such investment as has been made, has come very late indeed. It followed the court's specific direction at the failed final hearing in August; it took until October to be carried out and it is vague to a point of being little more than a statement of need, with the practicalities of bringing it about left open. It goes without saying that there needs to be a lift, a suitable bath and probably a new bed. That it has not even been determined whether X needs a new bed, or is likely to need it in the very near future, is the clearest evidence of its inadequacy. The occupational therapist does not need to consider the foster carer's home. He or she needs to consider X's needs and there is the clearest risk, already identified, that the necessary care for the still growing X will make the proposed alternatives unworkable.

(e) That the foster carer considers either an extension or a move to be necessary, highlights its inadequacy. It seems to the court that there is a very significant risk of the need for one or the other. In terms of planning, therefore, the local authority is not even at the starting block.

(f) Then one needs to consider the placement itself. There is very little information about the two other children in placement. The older child is said to have very similar needs to X: one child such as X is extraordinarily demanding of care. One suspects that caring for two may well be a task even greater than the sum of the parts. There is another child in placement. His plans are yet to be approved. He may return home in January. He may become a child subject to a placement order for up to 12 months. There is no evidence from those professionals responsible for his care that there is any willingness for him to be moved, if X is placed there. Indeed, the foster carer said in terms that she sees him being there for some time to come. It is not even clear to the court whether it is envisaged that X may be placed as one of three children with profound disabilities. It was said that the younger child is likely to be moved, but that is a decision to be made by others.

(g) If one assumed that X was to be one of two children in that placement, there is very good evidence as to the level of care she will need. She needs two adults to transition and one to one support for routine, daily activities. It is not just beyond M's ability to provide that without reliance on professional carers and Y, it was beyond that of two professional foster carers, as can be seen from the FC report three years ago. There will be two carers, it is understood, albeit for at least two children, but it became clear that there will be more than that. The foster carers have adult sons, who are likely to help, and again, only offered in closing, it was said that professional carers would be available to come into the house if necessary through the night, as seems highly likely, given how X currently presents.

(h) Not only does that completely undermine the local authority case as to the consistency of its stability of care, particularly with regard to likely night carers, it ignores what life living with X is like; her being awake and "partying" through the night, not only makes a lot of noise, that seemingly she enjoys, but it demands constant care to the extent that the multi-disciplinary team realised that their suggestion of an alarm to deal with reflux had to be discarded and the professional carers seek to replicate M's own practice of sitting up with her, all through the night, by checking up on her every fifteen minutes.

(i) It seems to the court that the proposed plan is completely wanting in all of these respects. If X would benefit from being in a family setting, something I do not on the evidence consider proved, she would nevertheless be subject to multiple carers, with a likelihood of a greater variety of carers than would be expected to be encountered in a residential setting, given what is usually known about the provision of domiciliary night carers. I have no evidence in relation to that: it was something that was first offered in closing. Thus, there can be no guarantee of a regime of key worker, care plan, with the build up of knowledge, by a team of regular carers.

(j) Finally, there is the problem inherent in foster care that this is an arrangement that can be terminated at short notice, for a variety of reasons, many of which are not easily able to be anticipated. Retirement, of course, can be, but ill-health, change in family circumstances or plans, are altogether subject to the vagaries of the different requirements of no doubt perfectly well-meaning and appropriate carers.

116. Taking all of these factors into account, it is the court's judgment that the care plan is not one that it can have any confidence can, or will, be put into effect, as currently devised. I mentioned that no timescales at all are suggested; still less, that it will satisfactorily meet X's needs and at the present time I would characterise it as inchoate.

117. So set against all of that, can M's plan be characterised as unviable? The short answer is that no more so than that of the local authority. Had the local authority supported M, one cannot help but feel that the SEN outcome might have been quite different. Is M's stance one that amounts to ill-treatment on her behalf, or exposes X to the risk of impairment to her health or development? Again, the short answer is no.

118. So, for all of these reasons, I am satisfied that the local authority has not made out the threshold that it must cross in order to open the gateway to public law orders. In reaching that conclusion, of course I have had regard to the children's guardian's view that this is a case where it is appropriate, as she put it, for the local authority to share parental responsibility. But I can only consider that if the threshold test is met and, whilst I accept that this devoted mother can at times be difficult, is very determined on X's behalf, has no doubt irritated the local authority along the way, she is also a mother who does know best what X needs, can and does work with those who care for X, and has an entirely reasonable view of how X's needs can be met. It does not, of course, have to be School C: her evidence was very clear that it was her preference, but she is firmly of the view that residential accommodation is best. If that cannot work with School A, there may have to be a change to education provision. But I would regard that as a necessary step that falls properly to be considered holistically and not, as it has been, thus far.

119. As I say, the gateway to the making of a public law order is simply not open. There is not, in the court's judgment, an evidential basis to establish "considerable noteworthy and important harm". If I am wrong, nevertheless, I do of course consider the question of welfare. I have to consider the least interventionist approach. The welfare checklist applies. A care order is a drastic order at the extreme end of the spectrum of orders that is available to the court. I seriously question whether the threshold for such an intrusive intervention could be justified, effectively enabling the local authority to override M's parental responsibility, in the circumstances.

120. Having reached my view about the care plan, I would not have approved it in any event without a great deal more work, but I question whether in the circumstances it could ever have been made to work with M, because her knowledge of X, her aspirations and ambitions are entirely reasonable and do not coincide with the plan that currently exists.

121. The local authority said there is no health reason for X to be in a residential placement. I would accept, on the evidence, that there is no health reason presently that would make residential care in effect mandatory. Of course, if there were, X could not reside at home. But that lack of a mandatory requirement does not exclude residential, as potentially the better option for X, as part of her overall package, in which it is accepted that she will spend a significant period weekly with her mother.

122. I am acutely conscious that this leaves the entire issue unresolved and that has preyed on my mind heavily in considering this judgment. But the court has to be faithful to its findings and could not make findings not supported by evidence, simply to resolve the issue. I seriously question the wisdom of these proceedings, which have simply polarised positions, antagonised M and social work professionals and made a difficult task the more so. It is rare for the court to conclude that a local authority had not made an appropriate use of Part IV of the Children Act 1989, but I am, on my findings, driven to that view.

123. This is a case that cries out for mediation and a negotiated settlement in which a greater degree of flexibility than has thus far been shown is required. I hope that the findings will, at least, assist in that. In the days before the Criminal Injuries Compensation Authority, X's settlement of her claim against F, would have proceeded on the basis of a common law assessment of damages. I suspect that the award would have been in the region of ten times that which she in fact received and that provision of a regime, such as School C, or similar, would have been accepted by the Board, with very little argument. Unfortunately, the Criminal Injuries Compensation Authority swept that away, on the basis that the State would provide for X's needs. This case demonstrates the tension thereby caused in far more straitened times and I am not ignorant of the vast cost potentially involved. But this is, on the evidence, a girl who needs 24 hour care, likely only to be modestly reduced from that if gastro-oesophageal surgery is wholly successful - something not yet known.

124. It is beyond the capability of this mother to provide it, for the reasons that I have explained It is unreasonable for Y, at fourteen, to be a carer. There is a limit, given the intensive nature of the X's needs and the care that they necessitate, as to how much can be provided in the home, whilst conserving M's energy for the care that she can provide. That, in the court's judgment, has to be recognised and a viable shared care regime that meets it devised. It is not, in the court's judgment, either necessary or proportionate to force this mother to share parental responsibility, as the local authority sought, to achieve that end. I urge the local authority to approach this with an open mind, having regard to the court's conclusions, as well as urging this devoted and caring mother, who impressed the court by her wholly selfless devotion to X, to work with the local authority to find a solution.

125. The court was not presented with any other welfare solutions as even possibilities. If an out of area placement has again to be considered, it needs to be. I should add that, despite what happened, if Home A was the only alternative, given that it was by common consent an unfortunate accident that X was double-medicated, something that of course is always a risk where there is more than one carer, as would inevitably be the case when X is not with M, I would not automatically rule it out as an option if, on a holistic analysis, it could be made to work, albeit with appropriate procedures and reassurance provided to M, that would minimise repetition.

126. That is, however, not for this court whose order will simply be that the application for a care order is refused.

End of Judgment

We hereby certify that this judgment has been approved by His Honour Judge Simon Wood.

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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) >> X (Child with profound disability) [2016] EWFC B100 (18 November 2016) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2016/B100.html Cite as: [2016] EWFC B100

England and Wales Family Court Decisions (other Judges)