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Monthly Archives: November 2012

It is lawful to make ICOs under repeated s37, I say it is lawful to make ICOs

 

A discussion of  RE K (Children) [2012] EWCA Civ 1549  which has just been decided in the Court of Appeal.

 

 

I previously blogged about the permission hearing here :-

 

 

http://suesspiciousminds.com/2012/08/31/ive-got-section-thirty-seven-problems-but-a-aint-one/

 The issue turns on this – in private law proceedings, the Court have a power to direct a Local Authority to make enquiries as to whether it is necessary to issue care proceedings – this is generally done when the Court begins to be so worried about the child’s circumstances that the possibility of care proceedings becomes a live one. The investigation is called a section 37 report.

 

The Court also has a power to make an Interim Care Order at the same time as making a section 37 direction – that is an order that allows the LA, if they decide to, to remove the child. So it is a very serious order, particularly given that :-

 

(a)   The LA haven’t applied for it

(b)   The parents won’t have seen a threshold document or social work statement in advance of the hearing

(c)   When making the ICO, the Court does not necessarily know what the LA will do with it  (or what the care plan is, in other words)

(d)   That the parents will not have known when coming to Court that day that there was a prospect of the child being taken off either of them and put in care  [as opposed to an application in care proceedings, where the parents are given notice and sight of the case against them and an opportunity, though a short one, to respond]

 

And so, making an ICO under a section 37 direction is a big deal. A very big deal, for article 6 purposes.  [I would have hoped that the Court of Appeal might have emphasised these things more than they did. They might, for example, have drawn the parallel between the rightly high hurdle for an Emergency Protection Order, where the parents have limited time to respond or defend themselves, with an ICO made of the Court’s own motion]

 

What this appeal turned on, was the vexed question of whether, if the LA do their investigation and say “We don’t need to issue care proceedings and don’t need an ICO” ,  the Court has power to make another section 37 direction and ANOTHER ICO.   [In effect, to make ICOs in an attempt to make the LA change their report and issue proceedings]

 

That’s what the Judge did in this case.

 

I was fully expecting the Court of Appeal to say that this was an abuse of process and goes further than the Act intends 

 

Unfortunately, from my perspective, and that of the appellants, the Court of Appeal thought otherwise, and that the Court can make an ICO under a further s37 direction even when faced with a s37 report that concludes that the LA have investigated and don’t propose to issue proceedings.

 

  1. In an appropriate case the jurisdiction in private law proceedings for the court to make a s 37 direction is an important and useful facility under which a local authority is required to investigate a child’s circumstances and required to consider issuing care proceedings. A private law case may last for a significant time and the circumstances of a child who is the subject of the proceedings may change. It would be wholly artificial to limit the court’s ability to utilise the s 37 jurisdiction to ‘one shot’ in each case. Nothing in the statutory language suggests that there is to be such a limitation on use. To the contrary, by s 37(1) the jurisdiction exists ‘where, in any family proceedings in which a question arises with respect to the welfare of any child, it appears to the court that it may be appropriate for a care or supervision order to be made’. Circumstances sufficient to justify it appearing to the court that a public order may be appropriate may occur for a variety of reasons and at different stages during a single set of proceedings.
  1. In the present case, the judge made a series of s 37 directions arising out of the same factual context on the basis that the investigation conducted by the local authority was, on each occasion, unsatisfactory. As a matter of principle, and before turning to the facts of this case and the justification for the judge’s exercise of the jurisdiction in this case, it must be the case that where a judge is satisfied that the local authority has either simply not complied with an initial s 37 direction, or has conducted an investigation which fails to a significant degree to engage with the court’s concerns, the court has jurisdiction to extend or renew its s 37 direction. It will be a question in each case to determine whether such a course is justified. In approaching that question it will be necessary to bear very much in mind that the statutory structure is firmly weighted in favour of the local authority, which, alone, has the power to issue a public law application under CA 1989, s 31. In Re M (Intractable Contact Dispute: Interim Care Order) [2003] EWHC 1024 (Fam), Wall J underlined the statutory structure thus:

‘[The court] cannot require the local authority to take proceedings. The limit of [the court’s power] is to direct the authority to undertake an investigation of the children’s circumstances.’ [paragraph 123]

  1. Having looked at the matters of principle raised by Mr Pressdee, and having determined that a court does have jurisdiction to make more than one s 37 direction during the currency of private law proceedings and has jurisdiction to extend or renew an earlier s 37 direction if the circumstances so justify, I now turn to look at the deployment of that jurisdiction by HHJ Tyzack in the present case.

 

 

Looking at the Act, there is nothing within it, or within case law that locks the Court into  one section 37 and one s37 ICO and one only, and that is how the Court of Appeal decided it.  But I respectfully think on the basis of natural justice, article 6 and proper process, it ought to have gone the other way.

 

For the avoidance of doubt, I think the decision is wrong, but not plainly wrong so that an appeal would succeed.

 

However, the Court of Appeal do say that where a Court does disagree with the s37 report and direct another one and make an ICO, it is incumbent on the Court to set out reasons.  [And that is why I don’t think they could be plainly wrong]

 

The Court of Appeal did say that if the ICO had been appealed at the time, the appeal would have succeeded, but this particular appeal was brought after the final Care Orders were made, the LA having yielded to strong judicial pressure and issued care proceedings

 

 

 

 

 

  1. Prior to the hearing on 4th March 2011, LCC had complied with the request for an addendum by filing a substantial 30 page report, which concluded that Tun should be returned to his mother’s care under a Family Assistance Order to LCC for a period of 12 months. The recommendation was based upon the level of cooperation between LCC and Mr and Mrs B that had by that stage been re-established. LCC was plain that it did not intend to make an application under CA 1989, s 31 for a care or supervision order.
  1. It has not been possible to obtain a transcript of the March 2011 judgment, but we have seen an attendance note of the hearing made by counsel for LCC and a note of the judgment prepared by Dr K’s counsel. LCC’s counsel seemingly met the jurisdictional issue head on by submitting to the judge that there were now no reasons that might justify making a further s 37 direction and therefore no jurisdiction to contemplate making a further interim care order. The judge apparently pointed to aspects of the report which gave rise to fresh concerns, in particular with regard to sanitation at the B’s home and the prospect that they might be evicted. He was also concerned that the social worker regarded it as acceptable for Tun to be left to protect himself from emotional harm by ‘developing strategies’ to cope with Mr B’s behaviour. These concerns are mirrored in the note of judgment which continues:

‘I am satisfied that it would not be right to act on what [the social worker] has said and I am not minded to discharge the ICO. I require the local authority to address the concerns of the father and the children’s guardian and the court on reading [this report]. I shall give [the social worker] 21 days to respond. I shall direct that input on behalf of the father and the guardian be put to [the social worker] within 14 days.’

On that basis the judge made a further s 37 direction for 21 days and a further 28 day interim care order.

  1. Mr Pressdee submits that the judge’s actions on the 4th March are in a different category from those at the earlier two hearings and that it is hard to avoid the conclusion that the judge, sitting in private law proceedings, was effectively dictating to a local authority and seeking to subvert the delineation of role, enshrined in CA 1989, which separates the local authority from the court. He also submits that the judge, once again, inverted the order of decision making by first determining that he was ‘not minded to discharge the interim care order’ before making the s 37 direction. Finally, Mr Pressdee argues that the judge totally failed to spell out in clear terms why the s 37 report was deficient; instead he delegated that role to the father and the guardian who were, over the course of 14 days, to indicate their concerns to LCC. In this context it is of note that the guardian had apparently departed on leave prior to seeing the March s 37 report and was not at the hearing. His views on the document were therefore not available to the judge at that time.
  1. Although a court has jurisdiction to make more than one s 37 direction in the course of proceedings, the exercise of that jurisdiction is to be considered at each turn with regard to the evidence that is then before the court and with regard to the firm weighting of the legislation in favour of the local authority being the determining body on the question of whether or not a child is to be the subject of care proceedings. In each case and at each hearing there will be a line beyond which the court may not go in deploying the facility provided by s 37 under which an interim care order may be made. Whilst the position of the line will vary in accordance with the particular circumstances of the case, the existence of the line and the need for the court to be aware of it should not be in doubt.
  1. By the 4th March the local authority had plainly discharged its duty under s 37 to investigate Tun’s circumstances, it had provided a comprehensive report of that process and had described the reasons for its considered and sustained opinion which was that it did not consider that a care or supervision order was justified at that time. On the evidence as it was at that hearing, making a further s 37 direction and, on the back of that, a further interim care order were steps that were clearly on the far side of the jurisdictional line delineating the role of the court from that of a local authority. In making these orders on that day the judge would seem to have failed to appreciate the limitation of his powers.
  1. In addition, where a local authority is presenting a considered position which is against the issue of care proceedings, it must be incumbent upon a court which holds a contrary view to spell that view out in clear terms and full detail in a reasoned judgment. In the circumstances, it was not sufficient simply to refer back to the December 2010 judgment and recite that the interim threshold had been satisfied at that time; it was, by March 2011, necessary to engage with the contrary view that was being firmly and consistently presented by LCC. The short judgment that was apparently given, and the delegation of the task of spelling out the suggested deficits in the local authority assessment to the father and children’s guardian were significant procedural errors.
  1. If this appeal were being heard during the currency of the 4th March 2011 order, rather than 18 months later, the s 37 direction and with it the interim care order would have to be set aside on the basis that the court had exceeded its jurisdiction in making them and had done so in a procedurally unsustainable manner.

 

 

 

On the broader issue of the appeal, that the Judge making the final decision about care orders had been biased, and in making his succession of ICOs under s37 he had effectively determined the need for care orders before considering the evidence as to whether they should be made, the Court of Appeal rejected this.

 

  • In the circumstances, Mr and Mrs B’s appeal must stand or fall upon the conclusion to be reached on their core assertion which is that the whole process before HHJ Tyzack was fatally tainted by unfairness and judicial bias against them. Their case is assisted by the conclusion at which I have already arrived to the effect that in making the March 2011 s 37 direction and a further interim care order the judge exceeded his jurisdiction. That conclusion is, however, the high point of their case on bias and unfairness. The conduct of the proceedings has to be looked at as a whole. From that perspective, for the reasons that I have given, I can detect no evidence of judicial bias or procedural unfairness. On the contrary the judgment of April 2011, the directions order of November 2011 and the full reasons given for the final decision in January 2012 indicate a judge who was looking to keep Mr and Mrs B on board in the process, should they choose to take part in it, and laying out clearly the factors that he was concerned about and in relation to which he would need to see evidence of change, should Mr and Mrs B wish to provide such. The actual decisions made by the judge were plainly profoundly unwelcome to Mr and Mrs B, but that that was the case is in not, of itself, any indication of judicial bias. In the present proceedings it would seem that Mr and Mrs B’s unilateral actions in withdrawing from cooperation with LCC and with the court at key stages contributed much to the way in which their claim to have Tun in their care became progressively less and less tenable. 
  • Having undertaken a thorough analysis of the process in this case, and despite having concluded that in March 2011 the judge exceeded his jurisdiction, I am fully satisfied that the proceedings as a whole were sound and free from judicial bias. If Mr and Mrs B had appealed the March 2011 interim care order at the time then, in my view, that appeal would have succeeded. They did not do so. Instead they withdrew from cooperation with a local authority, which hitherto had been supporting them to be Tun’s carers. Events moved on and now, some 18 months later, the finding of error in March 2011 is part of the history and cannot, of itself, lead to a finding that the judge’s final conclusion should be set aside with the result that the whole question of this young boy’s future should, once again, be considered afresh by the court. 
  • For the reasons that I have given I would dismiss this appeal.

 [Though I think the appellants had a point here, a Judge who is making repeated s37 ICOs is basically both the applicant and the tribunal determining the application, and it doesn’t sit well with me. I have no way of knowing, of course, whether it was the Judge or the LA who had looked at the case the wrong way, but it does not sit well with me that a Judge who had effectively midwifed the care proceedings into being then determines the outcome of those same proceedings.   It seems to me that whilst justice might well have been done, I’m not sure that it was seen to be done. I have a great deal of sympathy for these parents, who never really came to terms with what they genuinely perceived as unfair treatment, and lost their children as a result of their unwillingness to engage thereafter.  My personal view is that when the parents asked the Judge to recuse himself from the case, that ought to have happened.  Again, sadly, I don’t think the Court of Appeal were plainly wrong on this. ]

 

Here’s the case, make up your own minds

 

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1549.html

How do we deal fairly with vulnerable adults under suspicion?

 

 

It is not uncommon for adults involved in child protection cases to be vulnerable and have their own needs. It is not of course, always the case, but it is not rare.  Also, it is not uncommon for adults involved in child protection cases to be facing serious allegations and have to give factual evidence about whether they did, or did not, do something. It is again, not always the case, but it is not rare.

 

Inevitably then, there will be some overlap, where the person facing very serious allegations and having to give evidence about them is a vulnerable witness.

 

We have been lacking in guidance about this, save for the Court of Appeal decision that having a vulnerable adult as a potential perpetrator was not sufficient to dispense with the need for a finding of fact determination.

 

The Court of Appeal has just decided :-

 

Re M (Oral Evidence: Vulnerable  Witness)

 

I do not yet have a transcript, so this is the helpful summary from Family Law

 

 

 

Court of Appeal,  Thorpe, Rimer, Black LJJ, 21 November 2012-11-30

 

A fact-finding hearing was scheduled to determine whether the father had caused non-accidental injuries to the 18-month-old child. The father was found to have low intelligence and a psychologist recommended that due to his vulnerability, tendency to be manipulated and anxiety of speaking in front of people, special measures should be put in place when he gave oral evidence either by way of video-link or screen in court.

 

As video facilities were not available the father had to give evidence in court but a screen was not provided and the father’s application for an adjournment was refused. The father’s guardian acted as an intermediary but had no experience of doing so. Following the father’s evidence his representative applied for the trial to be terminated due to an infringement of the father’s rights under Article 6 of the Human Rights Convention. The judge determined that the father had capacity to give evidence and that he had caused the non-accidental injuries to the child. The father appealed.  

 

The appeal would be allowed. While the judge had a duty to manage the instant case in a busy court, that did not override the duty to ensure the father had a fair trial. The judge had erred in failing to specifically rule on the father’s application for an adjournment when it became clear that a qualified intermediary had not been available. Overall the judgment could not stand in light of the breach of the father’s Article 6 rights.

 

 

Hopefully, the full judgment will give some guidance to professionals and the Court as to how the article 6 rights of vulnerable adults are to be protected whilst the Court conducts the necessary determination of whether a child has been abused and if so, how that came about.

 

It raises also interesting questions as to whether a request for a cognitive assessment in cases where a fact finding hearing might be contemplated, should be tailored to include specific questions about giving evidence and any protective measures that should be put in place.

More on Vitamin D and rickets

 

A discussion of the Court of Appeal decision in Re C (A child) 2012  

 

The case can be found here – thank goodness for Bailii.

 http://www.bailii.org/ew/cases/EWCA/Civ/2012/1477.html

This was a case in which the parents sought to overturn findings made by Her Honour Judge Carr in relation to twelve fractures to a four month old infant, which she found to be non-accidental in nature and a result of trauma.  

 

  1. C was next presented at the hospital some four days later on 30th October 2009 at 22.14 hours with a swollen right leg. A subsequent skeletal X ray disclosed multiple fractures of ribs, fractures to his tibia and fibula which were metaphyseal in nature together with a transverse fracture of his right femur. There were twelve fractures in all which had been sustained by this four week old baby who was obviously not self-mobile.
  1. The fact finding judgment of 5th July 2010 records that the parents were given full rein by the court to identify and instruct whatever relevant medical experts they considered might be able to assist the court in understanding how baby C came to manifest the injuries and symptoms that I have described. In particular Professor Bishop, who holds the chair of Paediatric Bone Disease at Sheffield Hospital, and who is regarded internationally as an expert in paediatric bone conditions, was jointly instructed by all parties to the proceedings. It is a feature of this case that at the fact finding hearing each of the respective experts were unanimous in their conclusion that the probable cause for the groin symptoms and the fractures was trauma inflicted on baby C at some time after his birth. On the basis of that expert opinion, but also on the basis that the judge, for reasons given in the judgment, found that the parents’ evidence indicated fault lines in their relationship and in their credibility when giving evidence to the court, HH Judge Carr made a very clear finding that baby C had indeed been injured in the period between birth and final presentation at the hospital and that the only possible perpetrators of the injuries were the mother and/or the father.
  1. The parents’ application to the learned judge in June of this year was to re-open the whole fact finding process. The application was widely based and the skeleton argument on the parents’ behalf identified no fewer than twenty six factors which, it was submitted, now fell to be reconsidered in the light of suggested developments in medical understanding or which had not been given sufficient prominence at the original hearing. In a reserved judgment delivered on 18th June 2012 the judge reviews each of the points made to her on behalf of the parents and, in turn, rejects each one. Before doing so the judge noted that at the previous hearing “the court allowed the instruction of every expert/test requested by the parents, including, in particular – and contrary to medical opinion – genetic testing for possible bone disorder” and “even during the course of the hearing the court checked with those representing the parents whether there was any other expert evidence they sought – and was told ‘no'”.
  1. During the course of the June hearing the judge was taken to two recent decisions, London Borough of Islington v Al Alas and Wray [2012] EWHC 865 (Fam) and A County Council v M and F [2011] EWHC 1804 (Fam). The first of these cases, which I will refer to as “Wray”, achieved national publicity. In the Wray case, Mrs Justice Theis held that bone injuries seen on a young child were the result of rickets rather than inflicted injury. HHJ Carr, in the present case, considered that neither of these two new authorities involved any new point of law, and did not necessarily assist her evaluation of Baby C’s case. She drew particular attention to the following caveat given by Theis J in the Wray judgment:

“It is important to remember that my conclusions set out below are entirely related to this case. Despite their differences of opinion, all the medical experts agree this case is extremely complex. By their very nature, cases such as this are very fact specific and great caution should be adopted in using any conclusions I reach to support any wider view outside the very specific facts of this case…”

  1. Despite the fact that it is possible to summarise the June 2012 judgment in short terms, concluding as it did that each of the points raised on behalf of the parents took matters no further, it is right to record that the judgment itself indicates a significant amount of time and consideration given by the learned judge in which she traces each of the factors relied upon back to the evidence and conclusions that were current in the 2010 process.

 

 

The challenge in the Court of Appeal was interesting.  It is quite precise, so I won’t try to paraphrase it before you have read the judicial summary

 

  1. 12.   “6. What is the point that the parents seek to make? It can be put in very short lay terms. They contemplate, understanding as they and their advisors now do on the basis of medical knowledge, that it is possible for an unborn child to develop a deficiency in vitamin D to the extent that their bones are unduly soft, or otherwise be symptomatic of congenital rickets. The baby is born, and this was a difficult birth which may have been beyond term, although as I understand it the dates were not precise; and it is possible, say the parents, for the birth process, without any negligence or rough handling on the part of the medical team involved, to have caused the fractures in this case. The child is then born, no doubt it is postulated as at that moment deficient in vitamin D, but the child is then fed either entirely upon prepared milk or a mixture of breast and prepared milk, the prepared milk having vitamin D supplement within it.

7. Baby C was born on 3 October 2009, and his vitamin D was not measured at all until tests were undertaken in November, a month or more later. Those tests were normal. The argument on behalf of the parents is that it is not remarkable that the child’s vitamin D levels, once he ceased to be dependent upon the mother’s system, were up at normal levels because of the supplement he had been obtaining in the milk, and it does not prove one way or the other what his vitamin D level will have been at the moment of birth. I use the phrase “once he has ceased to be dependent upon the mother’s system” because it is a fact established on the medical evidence in the case that the mother herself has a modest — and I think it is modest — vitamin D insufficiency, and that therefore she may have been compromised in her ability to provide through the placenta an adequate supply of vitamin D to her unborn child. That is the synopsis of the parents’ case.

 

 

 

In terms, what is suggested is that it would be possible for an infant to have Vitamin D deficiency, which could lead to rickets, which could lead to susceptibility to fractures without trauma  – but that a test of Vitamin D at a later stage would not necessarily show a deficiency, because the Vitamin D levels can recover quite swiftly once the baby starts feeding.

 

The Court of Appeal immediately hit upon the problem with that:-

 

  1. 12.   8. My concern on reading the papers was that, whilst it is possible to understand that process, it would be impossible now, three years after C’s birth, to have any firm clinical readings or tests which could prove one way or the other, or even indicate one way or the other, that what is put forward by the parents was anything more than an intellectual possibility. The way the case was put before the judge indicates that she was not given any firm clinical hook upon which to see that the parents’ case might hang.

 

 The Judge also touches on the very interesting dynamic of a group of lawyers trying to persuade a Judge of the clinical and medical significance of some liver function tests, when none of them truly understand them.

The submission is made by lawyers to a judge, therefore between people who have no medical background, that the liver function is important in the sequence of production of vitamin D, and these abnormal liver readings may provide some base of clinical evidence to give support to the process that the parents now contemplate may have been involved.

 

What happened thereafter was that the Court of Appeal allowed the parents to instruct an expert of their choosing  (Professor Nussey) to look at the totality of the clinical features and medical records, to see whether there was anything that pointed clinically to this child having – firstly a Vitamin D deficiency and secondly that this might have led to Rickets, and finally, that the rickets might have led to the fractures being caused non-accidentally.

 

Those representing the child simultaneously instructed Jo Delahunty QC to represent the child, knowing that she had at her fingertips, the wealth of information from Al Alas Wray about Vitamin D deficiency and fractures; to look at the case and advise on whether there was a problem here that needed resolution.

 

 

The conclusions of the expert are set out here

 

  1. The following would seem to be the important highlights from Professor Nussey’s reports.

a) Blood results for baby C’s mother during the period of pregnancy demonstrate vitamin D deficiency in her system. Professor Nussey therefore states:

“thus, it is likely that C was subject to vitamin D deficiency for the majority of his inter-uterine life”;

b) Haematology results for baby C’s mother indicate that:

“she became progressively iron deficient during pregnancy though this was not confirmed by formal iron studies and it seemed to improve without iron supplements between August and October 2009.”

Professor Nussey explains that iron plays a role in collagen (the protein affected in osteogenesis imperfecta) synthesis and is an essential part of the enzyme that converts inactive vitamin D to its active form in the kidney. The professor knows of no studies examining the effects of combined vitamin D and iron deficiency during pregnancy and infancy;

c) Whilst it is likely that C was born with vitamin D deficiency and low iron stores, it is clear that C was bottle fed with vitamin D and iron supplemented proprietary feed. By 6th November 2009 all readings relating to baby C reflected a normal serum vitamin D concentration.

d) Professor Nussey concludes:

“Thus, whilst it is recognised that the quantities of vitamin D in formula feeds are calculated to prevent rickets rather than to optimise bone mineralization it is, on the balance of probabilities, unlikely that vitamin D deficiency played a significant role in bone fragility predisposing the fractures which C presented”;

e) Later Professor Nussey also concludes:

“There appears to be no medical condition linking the presentations due to fracture and its sequelae on 2nd November and 4th December 2009 to that on 26th October 2009.” (The latter date being the day that C was taken to A&E with symptoms around his genitals).

f) The final question asked of Professor Nussey was “having considered the medical evidence available to you, please indicate whether or not you have sufficient material to conclude whether or not the child has a medical condition to account for his injuries and if not, what further evidence you would require to draw a conclusion”. To which Professor Nussey replies:

“From the material available, within my expertise in endocrinology, I do not think there is a medical condition to account for C’s injuries. “

 

 

None of which is probably what the parents were hoping for, and it seems to get worse and worse as you go down the list.

 

The Court of Appeal were greatly helped by the involvement of Jo Delahunty QC, and set out her useful interventions here

 

  1. Miss Delahunty is rightly critical of the way in which this matter was presented to me in September. The 2010 fact finding judgment and bundle of expert opinion was not then made available to the Court of Appeal. In view of the need for urgency in resolving this issue I was persuaded to grant the adjournment sought rather than take further time seeking additional paperwork. However, Miss Delahunty argues that the fact finding judgment, which was plainly in the possession of the solicitors acting for the parents, would have demonstrated that HH Judge Carr had before her experts who had a particular expertise in bone disorders and vitamin D deficiency. These experts had been particularly asked to consider the very points now being made relating to the mother’s vitamin D deficiency and the possibility that the baby may have had vitamin D deficiency at birth and that that in turn may explain some or all of the fractures. The experts were also asked to consider if the birth itself could cause fractures and a neonatologist was specifically instructed to address the birth process.
  1. Miss Delahunty took the court to the report of Dr Takon, a consultant paediatrician with expertise in rickets who confirmed (page E128) that “rickets does not resolve without treatment”. She also referred to the evidence of Professor Bishop (page E108) where he stated that “it would be difficult to see how C could have been severely deficient at birth, have normal-looking X rays and normal blood tests four weeks later without treatment-level intervention.”
  1. Having looked at this matter in depth Miss Delahunty summarises the position as follows:

“From different specialism the same answers were given: birth could not account for the fractures. Neither could vit D or bone density disorders. The experts gave clear answers to clear questions. Vit D deficiency, even had it existed at birth, could not account for the type and age of the fractures identified upon admission.”

  1. In dealing with the oral submission now made by Mr Shrimpton, Miss Delahunty challenges counsel’s assertion that the clinical consequence of vitamin D deficiency is rickets. She accepts that vitamin D deficiency at birth may progress to rickets, but it does not equate to rickets. Miss Delahunty challenges Mr Shrimpton’s approach of cherry picking small parts of the expert evidence from the fact finding process when the total picture presented by all of the experts was entirely contrary to the argument now made.
  1. Miss Delahunty characterises the mother’s vitamin D deficiency as “very minor” and therefore the potential for this factor affecting the child’s bones is remote. She describes the parent’s argument as “without hope” and the application for a further adjournment to disclose papers to experts as being totally unjustified.
  1. The point made is that vitamin D could go from being down at birth but normal at four weeks, but weakened bones could not go back to normal in that time. It is submitted that Mr Shrimpton seeks to conflate the former, which is established by Professor Nussey, with the latter, which was the position of the experts at the fact finding hearing. The experts’ position is therefore unaffected by Professor Nussey’s insight into the intra-uterine vitamin D levels and that is confirmed by Professor Nussey’s own opinion that the vitamin D is, on a balance of probability, not related to the fractures.
  1. I have been impressed by, and grateful for, the thorough process that Miss Delahunty QC and Miss Denise Marson, her junior, have undertaken. I propose to extract section E and F from their skeleton (pages 13 – 19) and publish them as an addendum to this judgment in order that both the thoroughness of the exercise and its clear conclusions can be understood.

 

 

My reading of this is that there’s a risk in assuming that a possibility of vitamin D deficiency amounts to There was a vitamin D deficiency, the Vitamin D deficiency caused rickets, rickets caused the fractures; and one has to be careful in establishing that there is a clinical and medical case for advancing from each stage to the next.  Even establishing a Vitamin D deficiency does not establish that the fractures were caused by rickets, merely that this needs to be explored.

 

 

The totality of the conclusions, and the decision of the Court of Appeal was therefore that the findings made by Her Honour Judge Carr were not only robust and properly formulated, but not overtaken by medical developments that were more widely disseminated by Al Alas Wray.

 

[My broader conclusion is that you want to get on the phone to Jo Delahunty’s clerks at 4 Paper Buildings as soon as you can if you have a case where there’s a suggestion of Vitamin D deficiency, before anyone else beats you to it. It might be a stretch to suggest that she is the Perry Mason of family law – as he never ever ever lost a case, but I’d certainly suggest that having her on your team is rather like picking Lionel Messi to be in your five-a-side football team – you certainly would come to regret the other side having them instead of you.   If  Ms Delahunty wishes to use  “She is the Lionel Messi of the family bar” as a quote for Chambers Directory or the Legal 500, she would do so with my blessing]

 

 

The Court of Appeal felt that there were portions of her skeleton which warranted broader circulation, and annexed them to the judgment. I would agree, so here they are:-

 

 

 

  1. EXTRACT FROM SKELETON ARGUMENT ON BEHALF OF THE CHILD FOR THE ‘PERMISSION TO APPEAL’ HEARING LISTED BEFORE McFarlane LJ ON THE 1ST NOVEMBER 2012

E THE MAIN ARGUMENT? VIT D DEFICIENCY AS A BENIGN CAUSE FOR THE INJURIES

This submission made on behalf the parents lacks a fundamental understanding of the interplay between Vit D Deficiency and rickets and ignores the following:

  1. The skull is one of the first bones to lose bone density as its supply of Vit D and the formulation of calcium is sacrificed to the brain, blood and nerves. Vit D deficiency affecting the bones can manifest itself by wormian holes or craniotabes (softening or thinning of the skull). Baby C was delivered by Forceps. Dr Takon (Consultant Paediatrician with specific expertise in Vit D deficiency) advised that ‘rickets result from deficiency in Vit D which affects adequate bone formation. This is a disease of the growing bone and does not occur in utero. It can be caused by nutritional causes such as when there is a diet deficient in Vit D. Rickets does not resolve without treatment. Children with malabsorbtion and abnormal renal function which affects Vit D can present with rickets. C’s kidney functions, liver function and blood results were all normal. C had normal Vit D levels. The classic clinical signs of rickets are bone deformity. In infants the skull, the upper limbs and the ribs are the most affected due to the rapid growth of these bones during this period (Kruse). Deformity of the skull bones and bulging of the ribs are some of the bony changes that can be seen in addition to abnormal laboratory results. C had none of these biochemical or clinical features. He had normal Vit D levels’.
  1. If baby C was born with congenital rickets derived from Vitamin D deficiency in utero, Vit D supply would have been its lowest at birth and from that point on would have robbed the bones of their supply before the Vit D supplements provided by the formula milk had taken effect.
  1. The dating of the fractures, in any event, takes the point of infliction of them from after birth: the oldest was the 6th rib. Even if we reject the expert opinion that this was not birth related and assume it may be ( because of problems with dating the healing rate of calcium deficient bones ) that leaves the

a. Posterior fractures of the right 10th and 11th ribs;

b. 8 metaphyseal fractures of both distal and both proximal tibiae, left proximal fibula; both distal tibiae and right distal fibula;

c. Transverse fracture of the right femur.

  1. These were all dated at less than 11 days as at 2.11.09 i.e.: sustained on or after the 22nd October 2009, Baby C’s date of birth being 3.10.09 (Dr Halliday Page E39 (paragraph 5.4).
  1. It is significant

a. that they were thus most proximate to the normal Vit D reading obtained from Baby C on 6.11.09. and

b. That they showed signs of healing (see the well formed callus on the Right femur between 30.10.09 and 4.12.09 and the signs of healing on other fractures between the X rays of 2.11.09 and 12.11.09). The healing process demonstrates that Baby C’s bones were capable of utilising calcium to regenerate and form new bone.

  1. This point was emphasised and addressed further by Professor Bishop (whose evidence was accepted by HH Judge Carr QC) at no. 7 page E108 “It would be difficult to see how he could have been severely deficient at birth, have normal-looking x-rays and normal blood tests 4 weeks later without treatment-level intervention (3000 IU vitamin D/day; milk formula contains 40IU/100ml)”;[1]
  1. Dr Takon agreed ‘calcium metabolism in the foetus usually involves transfer of calcium from the mother to the infant. The growing foetus does require increasing calcium requirements which continue to be derived from maternal supply through the placenta. During delivery , when the baby is born, there is an abrupt drop in the supply of calcium which then stimulates the baby’s calcium regulating hormones kicking in and gradual stabilization of the calcium levels in the new born. The calcium levels can therefore be low at birth and then trigger secretions of Vit D in the infant to help stabilize the levels’ … E 128)
  1. Prof Nussey agrees on this critical issue (@ CoA bundle 100) ‘whilst it is likely that (baby C) was born with vitamin D deficiency and low iron stores, it is clear that C was bottle fed with Vit D and iron supplemented proprietary feed. In a population study in Canada a small number of bottle fed children with rickets have been reported (Ward et al Ref 5). However, the serum 25 hydroxyvitamin D on 6.11.09 was 76.7nmol/l and the serum calcium, phosphate and parathyroid hormone were all normal reflecting this serum Vitamin Concentrate. This, whilst it is recognised that the quantities of Vit D in formula feeds are calculated to prevent rickets rather than to optimise bone mineralisation it is ,on the balance of probabilities unlikely that vitamin d deficiency played a significant role in bone fragility pre disposing to the fractures with which C presented’
  1. It is highly relevant that all bar one of the bony fractures were

a. of the same age ( less than 11 days old)

b. of which 8 were metaphyseal

c. posterior re ribs

The fractures (in position and type) were considered to be highly indicative of NAI

It is not just that those fractures which were present were characteristic of inflicted injuries but the absence of others which might tend to suggest rickets that is relevant

•    No multiple fractures of multiple ages;

•    No fractures where the majority were the oldest and most proximate to birth (before the fortified milk had ameliorated any deficiency);

•    No fractures to the skull or the shoulders during the birth process and applied forces within it ;

•    No fractures thereafter to those parts of the body most commonly handled in bathing, changing nappies and dressing / undressing.

We suggest that not only were the type of fractures sustained by Baby C most commonly associated with inflicted injury but he did not have those fractures which are suggestive of early onset of, and gradually resolving, bone fragility.

  1. Not only were the fractures not those of the type, distribution and multiple ages suggestive of rickets but there were also no radiologically evident signs of rickets

For example see Dr Halliday @ E 119 just as an example: who had looked at the x rays for signs of oesteopenia (where the bones appear less white on an x ray) and wormian holes (small bones within the sutures of the skull). Nor were there visible signs of widening and splaying of the growth plates or widened periosteal reactions.

By itself, it may be that this was not conclusive evidence of the absence of rickets, BUT it is to be seen in conjunction with the point above and the points below.

10 Bone Density/ Appearance. Baby C’s scans and x rays were examined by treating medics and experts for signs of any bone abnormality. This included the skeletal X rays and CT skull imaging.

None were found. Again, by itself it may be argued that this does not conclusively rule out rickets but it is highly relevant when considered in conjunction with the other matters in this section.

Dr West (Const Paed): ‘no radiological of any underlying bone abnormality’ (E3)

Dr Halliday (Neuro Rad) ‘there is no evidence of abnormality of C’s bones on the radiograph which make him particularly susceptible to fracture. In particular there is no evidence of osteogenesis imperfecta or brittle bone disease (E38) and again @ E119 ‘rickets is also associated with osteopenia. Together with widening and splaying of the growth plates (cartilaginous strips at the end of the bone) and some times a wide spread perisosteal reaction. These features were not present on C’s films’

Prof Bishop (Prof Paed Bone Disease) ‘the size and architecture of the bones looks normal to me. There is no evidence of loss of bone mass’. and then @ E108 ‘there is no evidence of any bone abnormality or bone fragility. The pattern of fractures is characteristic of non accidental injury rather than bone disease. In my opinion C’s bones are normal and he has been the victim of non accidental injury.

11 Vitamin D deficiency affects the whole of the central nervous system of a baby’s body, it is essential to feed the nerves and brain cells, it follows ( as Al Alas explored at length) that its absence makes the baby –

1. vulnerable to seizures ( prone to hypocalcaemic fits)

2. with an increased susceptibility to infection and

3. with a decreased ability to recover from infection

These are the clinical signs of Vit D deficiency. (see Dr Takon @ E47)

Baby C exhibited none of them either at the time of his admissions or on report of the parents between them. He did not have an infection. (see Dr Takon @ E48/ E 50/ E 55/ E 126)) If he did have an infection he had been able to fight it off.

Clinically Baby C did not show signs of Vit D deficiency

Conclusion: In Baby C’s case all the multiple ways of detecting rickets and Vit D deficiency pointed in one direction and away from it being a causal factor in the fractures he sustained:

•    The absence of the type, number and age of fractures more likely attributable to rickets

    • The presence of fresher fractures close to the normal Vit D testing and their type
    • the lack of radiological evidence of rickets
    • the lack of biochemistry results indicative of Vit D deficiency
    • the lack of clinical indicators of Vit D deficiency

These factors, individually and collectively demonstrate that whatever condition Baby C may have been born with, rickets and on going Vit D deficiency does not provide a benign cause for the fractures he sustained.

This is not news . Dr Takon in her report @ E 60 considered and pulled together the significance of the mothers Vit D levels, her bone density scan and concluded that baby ‘C does not show any physical, biochemical or radiological features of Vit D deficiency’ . As did Prof Wyatt @ E 100 and Prof Bishop @ E 107.

Moreover, Baby C did not only suffer from fractures found to have been inflicted, he also sustained genital injuries which were found to have been inflicted. There is no link identified by Prof Nussey between the genital presentations and the fracture related presentations.

F THE GENITAL INJURIES

Whilst baby C’s genital symptoms (injuries) seen by Mr Roberts on the 26.10.2009 were initially diagnosed and treated by him as an infection for which he prescribed antibiotics, there is in fact, no objective evidence of infection. There were no clinical signs of infection, C’s temperature was normal, C’s blood test results were normal[2]. (see Dr Takon @ E56) . Baby C had no other treatment or diagnosis for infection in the first four weeks of his life. The conclusion of those experts who considered Baby C’s genital injuries were that they were ‘unusual and worrying’ and the result of traumatic injury where no accidental explanation had been given by the parents (e.g.: see Prof Wyatt @ E 93)

With no evidential base for rickets/vitamin D deficiency and no evidential base for infection, there is no underlying reason why C should present with injuries to his genitalia.

Prof Nussey agrees and can see no linking cause between the presentations.

Ms Jo Delahunty QC
Mrs Denise Marson

Note 1   The jointly instructed expert , Prof Bishop , and his conclusions at E107: ‘ C underwent a number of blood tests including two bone profiles, and had his serum PTH measured twice and his serum Vit D level measured once. His levels of calcium and phosphate were at the upper end of normal range for age as is frequently observed following fracture. His serum alkaline phosphates was not elevated (272 and 260 IU/I) and his PTH was suppressed (&) probably because his calcium level was higher than average. His Hydroxyvitamin D level was very good (76.7 n/mol/l on 6.11.09: higher than is seen in infants at that age. These are normal responses following fracture in a Vit D replete individual; prior vitamin D depletion would be unlikely given the formula feeds he had been on ( which contain Vit D and his normal serum PTH and alkaline phosphates. His platelets were slightly elevated and on of the clotting test times were reduced, neither of these are associated with bone fragility. Maternal 25 Hydroxyvitamin D has also been measured and is sub optimal at 39 n/mol/l on 13.11.09 in association with a PTH is close to the upper limit of the normal range at 6.25 pmol/l; however this is not a particularly low level of Vit D for a pregnant mother and one would not expect it to impact on the Vit D status of the new born on transplancental calcium transfer (which is not dependent on Vit D).     [Back]

Note 2   It is of significance that the blood was taken from C whilst at Rotherham District Hospital (RDH) this was prior to antibiotics being prescribed at Sheffield Children’s Hospital (SCH), see F23 from the original care proceedings bundle re discharge from RDH, and F173 – F174 re admission to SCH. See also further reference at page 98 of Prof Nussey’s report. The lack of infection ‘markers’ was NOT as a consequence of antibiotics having been prescribed.    [Back]

 

 

 

 

Goes together like a horse and carriage?

 Warning, this blog post contains references to both Cricket, and Pretty Woman, and thus is about as divisive as things can get.

I believe the Venn diagram of people who like both is two circles miles apart.   [The Venn diagram of people who like Cricket, Pretty Woman and maths is three circles four thousand miles apart, and me saying “what? What’s not to like?”]

I have been kindly pointed towards the report prepared by the Marriage Foundation, about marriage.  (by the co-author of the report, Rehna Azim, of 42 Bedford Row.   Rehna is an excellent barrister, and a damn fine specimen of humanity, so I hope that I can be impartial when discussing the report. I’ve put the possible bias up front, so you know)

I am going to be a bit curmudgeonly about the research, because I am The Grinch. None of my winges stop the issues the report raises being interesting.  And there is more to it than the Press reports, so I urge you to read it for yourself. It is fairly short, and there is a great deal of elegance and thought in it.

The report has hit a lot of the mainstream Press, because of its analysis about the media perception of marriage and the lack of longevity of the ‘fairytale’ celebrity marriages that fill so much newsprint at present.

 [And the mainstream Press take on it seems to be  ‘Celebrities, you suck, you are rubbish!”   – here’s some photographs of Emma Watson.   If you have some time by the way, Private Eye do a very good ongoing feature comparing the Daily Mail public take on paedophiles with the very unsavoury way that they describe 14 and 15 year old female celebrities  “looking all grown up”]

I suspect that there’s more to the report than the soundbites, so I will take a closer look.

If you’re going to do a soundbite this one from Coleridge LJ is top, top stuff.

He broadly says, don’t compare marriage to fairytales and Hello magazines portrayal of love and romance, and instead compare it to a Test Match.

‘Most of the time not very much happens,’ he said. ‘The beauty of the match is that it is played out over a long time and at the end there have been ebbs and flows, happy times and sad, exciting times and more mundane times, all going to make up the whole memorable experience.’

 I wish I’d written that. It has something of the Master, PG Wodehouse about it. 

 Anyway, here is the report

http://www.marriagefoundation.org.uk/Web/OnlineStore/Product.aspx?ID=138&RedirectUrl=~%2fWeb%2fOnlineStore%2fProducts.aspx 

You have to download it, but it was free, and pretty instant.  [The author of the blog takes no responsibility for any harm that might befall you from downloading stuff on the internet.]

The headline of the research is obviously that tracking the rate of divorce amongst celebrities over a 20 year period, it is about twice that of what Liz Hurley once described as  ‘civilians’

The authors suggest that

 Despite all the comforts and advantages of fame and wealth, these celebrities divorce at twice the rate of the UK population. After ten years of marriage, the divorce rate for celebrities is 40%, compared to 20% for the rest of us.

 

If the statistics are robust, that is a shocking figure.

My initial thought here is that it is pretty hard to strip one of the essential factors of modern celebrity out of the equation – the average celebrity is, by the nature of modern celebrity, more physically attractive than the average person in the street, and therefore superficially more able than the average person in the street to be able to attract another partner should their relationship end.

Of course, there’s far more to life than just basic physical attractiveness, and I don’t suggest that celebrities are superior beings to anyone else.

But, if Brad Pitt is weighing up whether to leave Angelina, he probably spends less time worrying about whether he will ever meet anyone else or whether he will die alone as a mad lonely cat-guy than Terry from Stoke might, in a similar position.

Another possibly influential factor from celebrity is the entourage – we just don’t know how being surrounded by people whose job is to massage your ego and tell you that you are great really prepares you for another human being telling you that you can’t watch the football because I’m a Celebrity is on.

[Or indeed whether there’s a Yoko-Ono effect, with that entourage or crowd of hangers-on, not terribly wanting the marriage to work]

The other problem with the research, from a geeky scientific point of view, is that given that celebrities don’t always marry someone as equally famous and publicly desirable  as them  (for every Richard Burton and Liz Taylor there are ten Britney and K-Fed or Julia Roberts and Lyle Lovett)  and thus it is not entirely unpredictable or unexpected that scales might fall from the eyes of the party with greater social cachet that they could ‘trade up’

You might need to have some stats on

Divorce rates of people who are subjectively in the top ten per cent of average attractiveness

And

Divorce rates of people who have married someone who would appear at face value to be in a different quantum of subjective physical attractiveness/and or success to them

Both of which would be insanely hard, if not impossible to gather.  But without them, I’m not certain from a statistical point of view that you’re measuring “celebrity” versus “non-celebrity” so much as the other factors that go alongside celebrity.

Also, continuing to be a bit Ben Goldacre-y – if you measure fluctuations in a relatively small population, it may be that things appear more statistically significant than they actually are.

For example, from the small pool here, I can diagnose that marrying a celebrity golfer has at least a 50% chance of heartbreak, whereas marrying a celebrity tennis player will result in marital harmony.  There’s just not enough data to draw those conclusions, but from what there is, I could legitimately form that impression.   [I also note that a few of the couples on the ‘still married’ list are… how shall I say this?  Well, one of the husband’s is Vernon Kaye and another is Ryan Giggs]

The thrust of the report, that we may as a society, have become fixated on the ‘whirlwind romance’ and an expectation of non-stop romance and drama and that the wedding day has to be spectacular, and as a result, the actuality of romance once all the hormones have subsided a bit, is less roller-coastery and more Test-Matchy.   And that peeking behind the curtains at these ‘fairytale romances’ perhaps they are not actually all that fairytale – it appears that their unhappy endings come around a bit more often than everyone elses.

There is also a more interesting, to me at least, angle which has not made it to the mainstream media reports. It is the extent to which the mainstream media reports of celebrity marriages actually has its fingerprints on the break-ups.

The trajectory of the tabloid money-spinner goes something like this: celebrity couple meet, announce the pregnancy, announce the engagement, split before the wedding, ‘open their heart’ about the agonising breakup to the tabloid in return for a cover story and eight page inside spread and then start all over again with a new partner before you can say ‘commitment’.

 

The tabloids love nothing better than a good ‘celeb’ wedding. The build-up to the special day and the nuptials themselves are big sellers. It’s just the ‘happy ever after’ that makes tabloid eyes glaze over. It’s so, well, boring.

 

They appear to have an aversion to famous people remaining in long-term relationships, particularly marriages. They prefer, instead, the six month, (maximum one-year) headline grabbing celebrity relationship.

 

An American tabloid recently ran a story claiming that the one-year marriage of Prince William and Kate Middleton was ‘on the rocks’. As ever, the magazine relied on information from the ubiquitous ‘a source.’ The latter is a prolific contributor to tabloid stories about the famous. He seems to have unprecedented access to the most private moments of celebrities

and is trusted by them to remain in the inner circle despite it being obvious that he has betrayed that trust.

 

The main message of ‘the source’ is usually that monogamy and marriage are boring

 

Mrs Suesspicious Minds sometimes reads a magazine called Grazia, and this magazine has been, to my eyes, waging an outright war on Angelina Jolie for about three years, trying to engineer a breakup of her relationship with Brad Pitt and for some unearthly and inexplicable  reason a reconciliation between Brad and Jennifer Aniston. 

Almost every article is based on non-attributed quotes from ‘a close source’ or ‘a close friend’  every one of which reads to me as being utter… well, fabrication is such an ugly word  – let me instead say ‘marvellous fortuitious insights that overlap entirely with the magazine’s editorial view of the story’.

I could, of course, be utterly wrong, and that Brad and Angelina do have close friends who routinely rat them out to the Press about the most intimate details of their life and yet who remain close friends trusted with their innermost confidences. I could of course, be utterly wrong and this is merely my own minor and personal opinion. The magazine is extremely sound on handbags I am told, to give these scurrilous and inaccurate opinions of mine some balance.

I thought that aspect of the report was probably more interesting and useful –  the suggestion that the mainstream media (and to an extent society) is happy to revel in the thrill of the chase and the seduction, but finds the actual bit of love (the give and take, the getting to know someone, the day to day life) bit boring, and is metaphorically reaching for the Sky-Plus remote to fast forward through to some good bits (sex, arguments, sex with someone else, discovery, break-up!)

After all, every single rom-com ends with the kiss, or at most the wedding, and the “happy ever after” bit is glossed over.

Because, frankly, the tiny little acts of caring and kindness that make a relationship work are not that exciting to watch or read about, compared to climbing up a fire escape in Los Angeles and telling the hooker that you bought and paid for that you love her after all….

On re-reading this, I’m even more The Grinch than I thought I was. For all of my grumbling about whether the statistics tell us as much as the authors think, I think that the report says a lot of things that are worthy of a proper public debate, and it says them well.

[I think the report is accompanied very well by the recent-ish episode of South Park on the issues of celebrity sex addiction, posing the question  “just why is it that men who are rich and powerful choose to have sex with a variety of different partners rather than remaining faithful?” and answering it “because of alien toxins spread on banknotes which cause the sex addiction illness” . Obviously.]

You can’t take it with you?

 

 

A knotty issue about Special Guardianship

I was asked a question about Special Guardianship today, and as I had entirely two different answers within the space of ten minutes, I thought it might be worth a discussion.

The questioncan be simplified (ha!) to this :-  “If a Special Guardian appoints a guardian to have PR for the child in the event of their death, would that stand up if a parent challenged it?”

 

 

My initial reaction was that the PR from Special Guardianship Order (like that of Residence and unlike that of adoption or being a birth parent) exists so long as the order exists, and thus it isn’t something which can be left to someone else in a will.

 

My second reaction was, that perhaps Parliament did intend to give Special Guardians such a power, it being an order more in character with “adoption-lite” than the “Residence plus” it has become in practice.

 

My third reaction was “I don’t know, I’ll have to find out”   which is my favourite sort of thing.

 

 

Well, firstly, there’s nothing in the Special Guardianship provisions which says that the order ends if the Special Guardians die.  (One might have thought, given that this is an order often made to people who are considerably older than the children concerned, that it should have been at least contemplated)

Here are the things that stop a Special Guardianship Order being in force :-

1. The Court granting an application to discharge under s14D

 

2. The Court making an order to discharge under s14D of its own motion

 3. That is all.

 

I find it a little bit bizarre that, for example, making a residence order to the father or mother wouldn’t discharge the SGO, but there you are.

 

According to Hershman McFarlane “Children Law and Practice”  the making of a Care Order does NOT discharge the Special Guardianship Order   (D904)  and I can find nothing to contradict them.  Common sense and logic says that surely it must, but the constructors of the legislation omitted it entirely. The making of an SGO does, however,  discharge an existing Care Order.  s91(5A)  .

 

This immediately makes me think that it is THEORETICALLY possible for a Court to make an SGO, pause for breath and make a Care Order. Who has ‘super PR’ in those circumstances?

Which wins

 

14C Special guardianship orders: effect

(1)The effect of a special guardianship order is that while the order remains in force—

(a)a special guardian appointed by the order has parental responsibility for the child in respect of whom it is made; and

(b)subject to any other order in force with respect to the child under this Act, a special guardian is entitled to exercise parental responsibility to the exclusion of any other person with parental responsibility for the child (apart from another special guardian).

 

 

OR

 

33 Effect of care order.

(1)Where a care order is made with respect to a child it shall be the duty of the local authority designated by the order to receive the child into their care and to keep him in their care while the order remains in force.

(2)Where—

(a)a care order has been made with respect to a child on the application of an authorised person; but

(b)the local authority designated by the order was not informed that that person proposed to make the application,

the child may be kept in the care of that person until received into the care of the authority.

(3)While a care order is in force with respect to a child, the local authority designated by the order shall—

(a)have parental responsibility for the child; and

(b)have the power (subject to the following provisions of this section) to determine the extent to which

(i)a parent, guardian or special guardian of the child; or

(ii)a person who by virtue of section 4A has parental responsibility for the child,

may meet his parental responsibility for him.

The first says that the SGO may exercise their PR to the exclusion of anyone else with PR, the second says that the LA PR trumps everyone elses.  Which of them actually has the trump card?   Forget irresistable force versus immoveable object, this is two irresistable forces meeting head-on.

 

 

If you are a Judge, and you feel mischievous, or you’re up for retirement and just want to go out with a bang, please make an SGO, pause and then make a Care Order, so that I can see what the answer to this is.

[The wording of s14C  also raises interesting theoretical problems where the SGO is made to two people, grandma and grandpa, say, and they then separate. Whose s14C power trumps whose?]

 

But, you are saying, surely the order discharges if the child dies?  Well, to all extents and practical purposes yes, but legally speaking, no.

 

Section 14 (C) (5) of the Children Act 1989  imposes a duty on Special Guardians to notify the parents of the child if the child dies

(5)If the child with respect to whom a special guardianship order is in force dies, his special guardian must take reasonable steps to give notice of that fact to—

(a)each parent of the child with parental responsibility; and

(b)each guardian of the child,

but if the child has more than one special guardian, and one of them has taken such steps in relation to a particular parent or guardian, any other special guardian need not do so as respects that parent or guardian.

 

Implying that in law, the concept of them continuing to be a Special Guardian (rather than “the former Special Guardian” ) exists.

 

 

Anyway, back to the issue.  So there’s nothing specific in the Act that says the SGO ends with the death of the Special Guardian.  Again, in practice, their exercise of the order is of course curtailed, unless Derek Acorah is on hand to impart their wishes and feelings with a Scouse flavour.

 

 

Can they appoint a Guardian to look after the child after their death?

 

 

Yes   (underlining mine)

 

 

(4)A guardian of a child may appoint another individual to take his place as the child’s guardian in the event of his death; and a special guardian of a child may appoint another individual to be the child’s guardian in the event of his death].

(5)An appointment under subsection (3) or (4) shall not have effect unless it is made in writing, is dated and is signed by the person making the appointment or—

(a)in the case of an appointment made by a will which is not signed by the testator, is signed at the direction of the testator in accordance with the requirements of section 9 of the Wills Act 1837; or

(b)in any other case, is signed at the direction of the person making the appointment, in his presence and in the presence of two witnesses who each attest the signature.

(6)A person appointed as a child’s guardian under this section shall have parental responsibility for the child concerned.

 

 

But hang on, what if the Special Guardian dies, and the birth parents are still alive?  Doesn’t their existence trump the appointment?

 

Again, my underlining to aid with clarity

 

S5 (7)Where—

(a)on the death of any person making an appointment under subsection (3) or (4), the child concerned has no parent with parental responsibility for him; or

(b)immediately before the death of any person making such an appointment, a residence order in his favour was in force with respect to the child or he was the child’s only (or last surviving) special guardian,

the appointment shall take effect on the death of that person.

(8)Where, on the death of any person making an appointment under subsection (3) or (4)—

(a)the child concerned has a parent with parental responsibility for him; and

(b)subsection (7)(b) does not apply,

the appointment shall take effect when the child no longer has a parent who has parental responsibility for him.

 

 

So, a father appointing a guardian after his death would not have that guardian appointed where the mother was still alive (or vice versa), but a SPECIAL GUARDIAN who appoints a guardian for the child has that guardian’s pr kick into life as soon as the Special Guardian dies.

 

There’s a procedure in section 6(7) of the Children Act 1989 for an application to dismiss a person as a guardian  (and indeed even the guardian themselves can do this).

 

Sadly, I can’t find any caselaw where this has actually happened. Boo.  I would LOVE to be wrong, please let me know if so.   The only piece of caselaw in the whole Hershman McFarlane chapter on guardianship (which I have never read before today) is a 1959 case, saying that where there are two guardians   (yes, the Court can appoint an unlimited number of guardians) and they are in conflict, one should step down.

 

 

But what I don’t believe is the case is that the ‘super PR’  (or more accurately, the power under s14C

 

 

(b)subject to any other order in force with respect to the child under this Act, a special guardian is entitled to exercise parental responsibility to the exclusion of any other person with parental responsibility for the child (apart from another special guardian).

 

 

Passes to the guardian.  I think it is just PR, putting the guardian and the birth parents on a more equal footing.

 

A guardian being appointed doesn’t stop the parent seeking a residence order in their own right.  (It would be interesting, given what I suggest about whether the SGO remains in force, whether the parent has to have LEAVE to make such an application)

 

If the Court were dealing with a residence/contact/specific issue dispute, between a guardian and a birth parent, I’m not sure I would have confidence as to whose views would win out, I think it would be entirely a merit-based decision.

 

So, the ultimate answer to the question originally posed

 

“If a Special Guardian appoints a guardian to have PR for the child in the event of their death, would that stand up if a parent challenged it?”

 

Is “maybe”

 

And I managed to be wrong twice in ten minutes, despite seemingly having covered all the bases.

 

Or as the Reverend Lovejoy said “…ooooh short answer yes with an if, long answer no with a but…”

Lies and the Lying Liars who tell them

 

A discussion of Re B (A Child) 2012

 

 

The case can be found here

 

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1475.html

 

 

I think this case is of interest, and it certainly interested two of the Appeal Judges, because it looks in quite a lot of detail at the intersection between odd, unusual and peculiar parenting and significant harm where the State has to intervene.

 

 

The case is rather neatly summed up by these two passages, firstly from Lewison LJ’s  judgment :-

 

  1. I have found this a very worrying case. In a long, detailed and careful judgment HHJ Cryan found that:

“I am satisfied that the threshold has been crossed, not perhaps in the most extreme way that is seen in some cases, but crossed it has been.”

  1. Yet when he came to make his ultimate order he made an order with a view to placing A for adoption; in other words to remove her from her parents forever. As I understand it that is, for practical purposes, the most extreme order that he could have made. How is that to be reconciled with his finding?

 

And then from Rix LJ’s judgment

 

However, standing back, I also wonder whether this case illustrates a powerful but also troubling example of the state exercising its precautionary responsibilities for a much loved child in the face of parenting whose unsatisfactory nature lies not so much in the area of physical abuse but in the more subjective area of moral and emotional risk

 

 

I know, from the comments I get on this blog, that emotional risk  or emotional harm is the area that concerns many of them the most. It feels nebulous and vague and tenuous, and rather as though it could catch anyone in the net and snare them, if they just happened to fall foul of the State.  And of course, it is the one area of child abuse that couldn’t  result in criminal proceedings being brought – what the parents are alleged to have done is not treat their child in an illegal way, but just an improper one.

 

 

Let’s have a look at the harm that the LA alleged was posed by these parents

 

 

  1. The local authority’s case was that each of the parents posed a significant risk to A. The cornerstone of their threshold case was as follows:

“[M] and [F] have innate psychological and/or personality issues and/or anger management issues (in relation to the father) which are likely to impair their ability to provide good enough physical and emotional care of their daughter. [M] has been assessed as suffering from a significant disturbance of psychological functioning, being best described as somatisation disorder and has a long standing history of engaging in deceptive behaviour.

There is a real risk that A’s emotional, education and social development will be impaired as a result of the parenting and emotional nurturing she is likely to receive by her parents due to their own innate issues; this leading to a real risk of significant harm.

[F] does not accept the fact that [M] can be untruthful nor that she is a risk to A. He is not therefore a protective adult for A.

[F] is unable to communicate in an open and honest way with professionals and accordingly exacerbates the risks to A.”

  1. As the foundation for this, the local authority relied upon findings made by Judge Cryan in the proceedings relating to AE about M’s relationship with Mr E and about M’s untruthfulness, demonstrated inter alia by her criminal convictions. They also relied upon a number of other features including:

i) M having continued to live with Mr E despite his abusive behaviour and, when she left, having left AE behind with him;

ii) The apparent difficulties in M’s relationship with AE;

iii) The risk to A of unnecessary medical investigations and treatment flowing from the somatisation disorder that two psychiatrists had diagnosed in M;

iv) The risk that M may impair A’s moral, emotional and social development by involving A in her deceptions and exaggerations, termed in the threshold document a “tendency to pathological lying”;

v) The problem created by social services and other professionals being unable to rely on the truth of what M says;

vi) F’s long history of criminality and drug use;

vii) F’s refusal to engage with the local authority’s attempts to find out about him and to assess him, his failure to be open and honest with professionals and his deep hostility to social services including his threatening and aggressive behaviour towards them;

viii) F’s unwillingness to accept that M poses any risk to A and therefore inability to protect A from her.

 

 

 

Apart from the issue of father’s drug abuse, of which not much seems to be made, the rest of this seems to boil down to  ‘the mother is a pathological liar’ and that might bring about harm to the child.

 

Whilst the totality of the case makes it pretty clear to me that there were sound reasons for believing the mother to be a pathological liar, and the Court of Appeal were very complimentary to the way that the trial judge had carefully sifted and weighed all of the evidence,  I have to confess that I am struggling for concrete risks that having a pathological liar as a parent causes to the child.  Some of the lies she is reported to have told are bizarre, odd and strange, and it is not a massive leap to suggest that a child exposed to them might find it bizarre, odd and strange that such lies were routinely told by a parent. But, I’m not sure that amounts to significant harm, or risk thereof.

 

There’s a hint at it in this line :-

iii) The risk to A of unnecessary medical investigations and treatment flowing from the somatisation disorder that two psychiatrists had diagnosed in M;

 

which implies that mother’s pathological lying might extend to making up illnesses or need for treatment of the child.  In part because some of her pathological lying has manifested in her lying about her own medical situation to get attention. So it might transpose to the child (back at Munchausen by proxy again).

 

Well, it might.  They don’t say that it HAD done this, and if it HAD, the LA would surely have been relying on it, and I think that’s a bit of a stretch.

 

It seems to me that this risk could be pretty comprehensively managed by the GP and local paediatric department being alerted to mother’s somatisation disorder, which presumably they had on the files about her anyway, so they would know not to take everything she said about A’s health at face value.

 

 

 

There is an interesting criticism of the Guardian by the original trial judge, which I think flows from working practices rather than any poor work on her part as an individual  (yes, I am back on my Homeopathic Guardians hobbyhorse)  – although the fact that in the previous paragraph she had not understood the limitations of an Interim Supervision Order was pretty troubling.

 

 

Judge Cryan’s judgment set out the limited role that the guardian had played during the care proceedings and the judge’s concern that in a case of this complexity she had not been able to engage more closely so that she could help the court from a more personally informed position. Her assessment of the family support network was described by the judge as “virtually useless”. His overall conclusion about the guardian was that she was “an unimpressive witness whose input to this complex case was little short of superficial”.

 

 

 

On threshold, this was the passage where the Judge decided whether it had been crossed

 

  1. Judge Cryan said [189]:

“I am satisfied that the threshold has been crossed, not perhaps in the most extreme way that is seen in some cases, but crossed it has been. I am satisfied from the evidence of Drs Bass and Taylor that when A was taken into the care of the local authority some two years ago now she would have been at risk of significant harm from the care likely to be given to her by her parents. I am satisfied that the mother suffered from each of the disorders which the doctors have diagnosed and following on from that I accept their evidence that in the way described by them there was a risk of significant harm being caused to A. In addition, though for the purpose of the section 31 threshold such considerations are otiose, I am satisfied that the matters identified by Ms Summer, whose evidence I accept, cause me considerable concerns. In particular, curious as it may seem in light of the parents’ obvious commitment to contact, I would be seriously concerned about the parents’ capacity adequately to promote her emotional welfare if she was in their full-time care.”

 

 

The parents appealed, relying in large part on the doubt that the behaviour alleged by the LA, could (even if proven) constitute a risk of significant harm.

 

I liked this passage from their submissions

 

  1. Counsel invited our attention to a number of authorities, domestic and European, in order to provide a framework for the consideration of their factual submissions, whilst rightly identifying that there is relatively little authority on the meaning of “significant harm”; I will consider some of this jurisprudence a little later. Counsel submitted that the section 31 threshold is not a low threshold and that the requirement that the harm should be “significant” should not be diluted but interpreted in the light of the fact that any interference with family life must be “necessary”.
  1. They argued that the risk at its highest is that A “may develop unacceptable or unusual behaviour” but that it is not said how that would harm her or others.
  1. In a passage of their skeleton argument which brings to mind some often-quoted words from Hedley J’s judgment in Re L (Threshold Conditions) [2007] 1 FLR 2050 (see below), they said:

“Many parents are hypochondriacs, many parents are criminals or benefit cheats, many parents discriminate against ethnic or sexual minorities, many parents support vile political parties or belong to unusual or militant religions. All of these follies are visited upon their children, who may well adopt or ‘model’ them in their own lives but those children could not be removed for those reasons.”

  1. They submitted that to justify interference in family life, the harm which is foreseen must have some element of immediacy or at least reasonable proximity which is lacking here given the number of contingencies upon which it depended and given that the general practitioner would act as a safeguard against problems developing.

 

 

And I have to say, I don’t really disagree with any of that.  To this point in the judgment, I am still struggling to see what transforms this from being a child who will be brought up in an odd, unusual and possibly downright peculiar environment to one who would be significantly harmed by the parenting she received.

 

 

 

 

 

 

 

 

 

 

This is how Black LJ squared that particular circle

 

 

  1. Although a significant focus of the argument before us was upon M’s medical behaviour and particularly upon whether her somatisation was sufficient to justify the orders the judge made given that there was no evidence of inappropriate consultation since she left Mr E, and whether she could additionally be said to suffer from factitious illness disorder, in fact the judge’s consideration of the case was rightly considerably wider than this. All the professionals involved in the case, whether or not advising that A should be united with her parents, accepted that there were risks. The focus of each individual witness varied depending on their point of view but the field was not limited to the acknowledged risk that M’s distorted behaviour in relation to illness (whatever it may be termed) may not be historical only and may revive. It included also wider risks to A’s emotional welfare posed by M’s personality problems and her non-medical behaviour, as well as F’s conduct separately and in conjunction with her.
  1. Given the focus of the hearing before us, I will deal in some detail with the type of harm that I consider the judge was entitled to find was a real possibility here. I do not accept that he erred either in the harm that he identified or in treating it as of significance. Furthermore I do not accept that the judge’s reasoning about harm and risk is confined to the latter parts of his judgment; he refers to both issues repeatedly throughout it as I hope can be seen from my earlier summary of the judgment.
  1. The judge was clearly aware of the need to look critically at what harm there actually was and in particular to separate that issue from the question of whether the parents would cooperate sufficiently with social services. This was evident not only from the judgment but also from a passage to which we were taken in the cross-examination of the social worker where at one point the judge intervened to explain to her that it did not matter how uncooperative parents were with social services if there was no risk against which social services needed to guard. He isolated for her the questions, “What is the risk to A that is actually being guarded against?” and “Why is it necessary [for social services] to engage with M?” (transcript 7/35).
  1. The corollary of the risk of M’s medical behaviour reasserting itself was the risk that A would be harmed by the “intergenerational transmission of abnormal health behaviour” and “excessive medicalisation”, which terms are self-explanatory even if not part of everyday language. This harm would not necessarily be physical but the judge did not discount the risk of physical harm. He is criticised for his acceptance of such a risk. The criticism is misplaced in my view. He found only that there was a risk of over-treatment or inappropriate medical treatment. He was undoubtedly entitled to find that there was a risk that M’s illness related difficulties, if they reappeared, would lead her to present A inappropriately to doctors and unnecessary treatment was a logical potential consequence of that. His finding about the parents’ approach to A’s health whilst she has been in foster care added substance to this risk as did M’s exaggerated description of A’s condition on her hospital admission to which both Dr Taylor and Dr Bass attached significance and which might, if repeated or made to those not in possession of the facts, influence her medical care as the judge said.
  1. Ms Summers dealt with the harm flowing from M’s chronic lying and F’s active tendency to dishonesty [192] in her report at paragraph 6.5. She considered that as A got older and reached more sophisticated levels of understanding, she would become aware that her mother’s version of the truth differed from her own which would be confusing for her and force upon her difficult decisions about whether or not to collude with her mother against the outside world such as friends, school and professional agencies. She said that exposure to persistent and longstanding patterns of lying would present a moral risk to A, potentially making it difficult to differentiate right from wrong which could lead to problems with her social and emotional development affecting school life, friendships and other relationships. Continued exposure to deceptive behaviour was likely, she thought, to result in A adopting similar styles of behaviour which would potentially have serious consequences in later life, such as delinquent/criminal behaviour.
  1. The judge said he shared Ms Summers’ view but he had plainly also made his own assessment of the likely emotional risk/harm to A from features of the case other than M’s illness related behaviour. He had the evidence of Dr Bass and Dr Taylor that M had personality problems and he had found a catalogue of ongoing deception which Dr Bass had indicated he would find very concerning. The catalogue can be found in full in the judge’s judgment and I have referred to it above so I will only briefly draw together a few of the features here.
  1. I would attach particular importance to the findings that the judge made about M’s position in the E household. M had plainly suffered very considerably in that household and she deserves sympathy for the abuse inflicted upon her there but the judge’s findings disentitle her from arguing that she was solely a passive victim and that her problematic behaviour will not recur. There was, to borrow phraseology from the guardian’s skeleton argument, a problem about learned or ingrained behaviour. The judge did not see M’s role in the E household as entirely inert [22]. In the April 2011 judgment, he described her as “a habitual and purposeful liar and accomplished fraudster” and said he could not see that there had been any very marked improvement in her truthfulness despite her nearly two year separation from Mr E. Her use of complaining tactics since she separated from Mr E, as detailed in the judge’s current judgment, led him to describe her as “an accomplished pupil of Mr E” [131]. The incident when M behaved vindictively with CN was redolent of the E household and worrying. It will be remembered that the judge also found that her dishonesty was pervasive and not merely reactive to a given situation such as the proposal that A should be adopted [165], giving examples which substantiated this assessment.
  1. F could not be relied on to curb the excesses as he had known of M’s inappropriate activities and furthermore had not been entirely candid himself in ways which the judge described. The judge also found him to have very poor impulse control and to have an assertive wilfulness about him as well as a problematic way of approaching authority including social services. The wider context was that F had not played a full role in the upbringing of his other four children and had an extended history of criminal behaviour and of taking Class A drugs, albeit that in more recent times he had not been convicted of any offences and had confined himself to cannabis.
  1. The judge’s assessment of the couple’s relationship was that they were deeply loyal to each other against the world, viewing the world of authority with great suspicion and sharing a disregard for the truth and integrity of conduct [54]. It will be recalled that he referred to their “characteristically toxic reaction” when matters did not please them as they probably would not at times [177] and said that they were “controlling and wilful” when challenged on some of the distorted elements of their world view or faced with a refusal to be compliant [196]. Commenting that there was a high probability that F would not separate from M in any meaningful sense in order to bring up A alone, he said that “their mutual tendency to lie and deceive is so profound and effective that there would be no way in which the situation could be effectively monitored and A safeguarded” [199].

 

 

You may, like me, still be at the  ‘it is all pretty unsavoury, but am still not sure it crosses threshold and results in adoption, because it still boils down to being mum is a lying liar’ point

 

Black LJ presses on

 

  1. Counsel for M submitted that non-medical risks of the sort identified by the local authority and the judge were not what the Children Act was driving at. However, I agree with counsel for the local authority who submitted that it is a question of degree. The judge was best placed to assess the situation as a whole and to make the necessary value judgment about whether the threshold criteria were established and whether a care order was required. Somatisation might not have been an active problem for M in recent times but the same could not be said of her other maladapted behaviour and the judge was entitled to take the view that he would have to proceed upon the basis that there would continue to be problems. The emotionally harmful effects of maladjusted behaviour, albeit it may be said that they were in a more extreme form, had been amply demonstrated in the course of AE’s case. That the judge had made the link with this can be seen from his remark at [155] that the “highly undesirable isolation of the E household comes to mind”.
  1. It was argued on the parents’ behalf that the risk/harm was not sufficiently immediate. No doubt it could be said that A, at her present age, would not be old enough to appreciate the difficulties in her parents’ behaviour. However, a child’s emotional and social development begins from the earliest stages whether he is conscious of the influences upon him or not and, as the social worker said in her statement (C44), the actions and behaviours of parents can have a long lasting effect on children from an early age. Furthermore, this was not a case in which there appeared to be any realistic hope that things would change in future and a placement of A at home followed by a later removal into care would import a danger of more emotional damage plus even greater difficulties in finding a suitable permanent placement.
  1. In short, the catalogue of problems identified by the judge went beyond the routine; the problems were undoubtedly more than commonplace human failure or inadequacy. They were also of long standing and had not only manifested themselves in response to the intervention of this local authority. There is no doubt that the judge was entitled to take the view that any strategy to manage the risks would have to go beyond the safeguard of the watchful eye of the general practitioner and would need to involve social services. The parents needed to have the capacity to engage with professionals to ensure that A was safe from harm and there was ample evidence on which the judge was entitled to conclude that they would not be able to do this.

 

 

Nope, I’m still with the parents on this. The two other Judges basically came down to saying that the trial Judge could not be said to have been plainly wrong, though hinting that they might have reached a different conclusion, and the appeal was refused.

 

My gut feeling, and of course seeing the full case and hearing all of the evidence is an entirely different affair, is that on the headlines of what is alleged to have given rise to threshold, I don’t believe threshold is met. But I am wrong, because the Court of Appeal have decided otherwise.

 

I don’t think we have seen the last of risk of emotional harm as a topic ripe for litigation and clarification.

Take my breath away

A discussion of A Local Authority v A mother and others 2012    (which has to be the most anonymous of anonymisations I have seen to date… I  almost wish they had called it  Some organisation versus Someone 2012  – or  Applicant versus Respondent 2012, you can’t get much more anonymous than that)   – let’s call it “the Asthma case” so that we can remember it.

 

 

The case can be found here

 

http://www.bailii.org/ew/cases/EWHC/Fam/2012/2969.html

 

 

It is a High Court case, dealt with by the Honourable Mr Justice Peter Jackson (of whom regular readers of this blog will know that I have something of a brain-crush on)

It is an interesting one  – the child in question is nine, and has had an extensive history of medical treatment and interventions arising from her asthma

 

  1. The circumstances relating to J are highly unusual. She suffers from asthma, which has since her removal from her parents been well controlled by common basic inhaled steroid medication (Seretide) and occasional use of an inhaled bronchodilator (Salbutomol). Her asthma does not currently impinge on her daily life to any significant extent, although she had one hospital admission for two days in March 2012 for exacerbation of asthma following an infection. She does not suffer from any other life-limiting conditions. Her regular clinical reviews are all clear. Her attendance at school has been excellent and her participation has been full, in the physical and social aspects of school life as well academically. She is currently a well child physically, and there are soundly-based professional hopes that her current medication can progressively be reduced. Asked how she was in July 2012 by the jointly-instructed medical expert Dr H, J said she was ‘much better now’.
  1. A year ago, before her removal from her parents, J’s apparent health status could hardly have been more different. Her asthma was uncontrolled, despite receiving the most extreme treatments available. She was on intensive treatment to combat reported nocturnal desaturations (reduction in blood-oxygen levels). She had also suffered a number of reported Apparent Life-Threatening Events (ALTEs) while in the care of her parents.
  1. J, aged just 8, then described herself as ‘a very poorly little girl’. This is not surprising, because since she was under a year old she had been under continuous medical care and her condition had baffled and defeated the efforts of the country’s leading specialists, despite every conceivable strategy to control her asthma and to diagnose the cause of desaturations and ALTEs. None of the three specialists who gave evidence had encountered a child who has had more varied or intensive treatment.
  1. J’s medical records spanning 8 years run to over 4500 pages (12 lever arch files). The history is set out in full and uncontested detail in the reports of Dr H, referred to above, and Dr C, referred to below. Any summary is bound to be incomplete, but it must include:

A Specialist care

J has had the following care:

  • Primary: her GP
  • Secondary: her local hospital, under Dr O, since September 2004
  • Tertiary: the leading regional hospital, under Dr C, since October 2006
  • Quaternary: the leading national hospital, under Professor B, since January 2007.

B Hospital admissions

Between 2005 and 2011, in addition to countless routine hospital appointments

  • J was admitted to hospital over 50 times, ranging from overnight to a three-month admission in April 2010.
  • these admissions included 22 by ambulance, frequently at night.

C Medical examinations

J has been assessed or examined during planned reviews or emergency admissions by

  • her GP
  • a Paediatric Dietician
  • a Consultant Paediatric Cardiologist
  • a Consultant Child & Adolescent Psychiatrist
  • a Consultant Paediatric Neurologist
  • a Consultant Community Paediatrician (Dr O)
  • a Clinical Psychologist
  • a Consultant Ear, Nose & Throat Surgeon
  • specialist Respiratory Nurses
  • a Consultant in Paediatric Respiratory Medicine (Dr C)
  • two further Consultants in Paediatric Respiratory Medicine at leading specialist hospitals
  • a Professor in Paediatric Respirology (Professor B)
  • a Consultant in Paediatric Intensive Care, Respiratory and Sleep Medicine (Dr H, providing an independent overview for these proceedings)
  • many specialist Registrars locally and across the country
  • numerous other doctors not listed above

D Intensive medical treatment

For her asthma, J’s treatment progressed rapidly through the recognised stages of asthma treatment, in accordance with the British Guidelines on the Management of Asthma, and then beyond those guidelines. The following are prominent among the many drugs that she has been given:

  • inhaled bronchodilators (Salbutomol)
  • inhaled steroids (Seretide)
  • oral steroids (Prednisolone)
  • eventually, unlicensed drug treatments for a child of her age:
    • Omalizumab (Xolair) by highly distressing monthly intramuscular injection
    • Triamcinoline, an intramuscular steroid
    • Methotrexate, an oral steroid to suppress her immune system
    • Terbutaline (Bricanyl), delivered subcutaneously via an infusion pump visibly attached to the body for four months prior to her removal from the parents

For her reported desaturations, J had since 2006

  • slept wearing a positive airway pressure face mask (BIPAP)
  • slept with an oximeter (blood/oxygen level monitor) attached to her toe
  • had a large oxygen concentrator at her bedside

E Tests

J has had

  • sleep studies at three hospitals
  • blood tests and sweat tests
  • an echocardiogram, an ECG and a CT scan (whilst sedated)
  • a barium swallow
  • a bronchoscopy (under general anaesthetic)
  • an ENT investigation, leading to removal of her adenoids

F Side effects

The physical risks from this escalating treatment were substantial. For example:

  • Steroids can cause weight gain and change in facial appearance, slowing of growth, adrenal suppression, and in the long term high blood pressure and diabetes
  • Methotraxate is used in chemotherapy. It carries the risk of nausea, severe infection, liver or renal damage, gastro-intestinal upset and suppression of bone marrow; it requires weekly hospital blood testing to check blood count
  • General anaesthetics carry their own risks

Fortunately there is no evidence that J has suffered lasting physical side-effects, but it cannot be known that she has not been affected in some way in the longer term.

G Pain and suffering

J’s overall treatment is described by Professor B as having been invasive and unpleasant. She was often extremely frightened and sometimes had to be held down. She developed needle phobia. The distress caused to J by the Xolair injections was such that the nursing staff became so concerned that they asked for the treatment to be discontinued, which it was.

H Emotional, psychological and social consequences

J has been profoundly affected by her experiences. Writing this year, an educational psychologist describes her as ‘a youngster who is the product of her life’s experiences which until very recently have been those of a child with a life threatening condition requiring considerable accommodation to her medical needs by J herself and all those in contact with her.’ During each of her three years at Infant School her attendance record was just 55-60%. A child with no apparent learning difficulty, her spelling and reading is delayed by two years or more. Her social development has also suffered severely. She adopts an adult style of conversation, speaking with knowledge and fluency about her medical condition, which until recently has been a fixation for her. She does not relate well to other children, and has had no friends. Dr H described the amount of medical intervention as being comparable to that with a child with leukaemia. He said that J has had ‘a very, very stressful life’.

  1. In the light of the above, it is sad and indeed shocking to record that there is now a firm medical consensus, ostensibly accepted by the parents during the course of this hearing, that most of the treatment that J has received down the years has been unnecessary.

 

 

 

What happened, eventually, is that one of the doctors in the case alerted the Local Authority and recommended that J be placed in foster care, because he was of the view that the extreme treatments this young girl was having were not required by her condition and that her being away from the parents might demonstrate that.

 

To an extent, they did – in foster care, her asthma condition was entirely controlled by the same twice-daily administration of steroids through an inhaler as the parents had been told to give the child.

 

On the face of it, this looked like it might be a factitious illness case (we don’t call them Munchausen’s Syndrome any more, that being rather tainted, and we never did call it the correct name which was Raspe’s Syndrome  – as Munchausen was invented by Raspe and is a fictional character, although actually there’s some doubt as to whether it is a syndrome at all, rather than just being a small subset of behaviour… end of sidetrack)

 

But the thrust of the case and the medical evidence  rather than being whether the girls symptoms were being faked, eventually turned on whether the parents were actually giving this very poorly young girl the twice a day inhaler that she needed. Straightforward, though particularly unusual, neglect

 

  1. The LA’s case, in reliance on unanimous medical opinion, is that the parents failed to administer J’s steroid medication (Seretide and possibly also Prednisolone) to her, either properly or at all, and that this explains why her asthma remained uncontrolled for so long. It also alleges that the parents have misrepresented and exaggerated descriptions of J’s desaturations and ALTEs.
  1. In their written evidence, the parents denied any shortcomings in the way they have managed J’s care. Faced with her statement about not having a purple inhaler, they said that they administered the Seretide to her morning and night while she was asleep. During the hearing, they then admitted that on a significant number of occasions (a quarter, M thought, though F thought fewer) they did not administer steroids and that there were other times when they did try but when J would not accept her medicine. They also stated on the first day of the hearing that they were giving half the prescribed dose of Seretide (i.e. one puff twice a day rather than two puffs), saying that this was as a result of a misunderstanding. They now say that they accept the medical opinion that their failure to administer the correct doses regularly was the cause of J’s uncontrolled asthma.
  1. As to the desaturations and ALTEs, the parents say that these were real and frightening events. Insofar as they may ever have mishandled them, they point to the huge stress of looking after such a sick child, latterly with a new baby in the household. M in particular is described as having been permanently exhausted.

 

 

 

On this key issue, the Judge determined that the parents had not been giving their daughter her medication and that this is what had led to her asthma being so uncontrolled and problematic

 

  1. The evidence in relation to J’s apparently intractable asthma is clear. Over 95% of sufferers have their asthma readily controlled by the use of common safe and effective remedies such as Salbutomol (a reliever of symptoms) and Seretide (a preventer of symptoms). In the remaining number, half are resolved by ensuring compliance with the drug regime and improving inhaler technique.
  1. The probable explanation for J’s uncontrolled asthma is simple. As Professor B put it, there is a strong argument that very little steroids of any kind were being given, in the light of the fact that her asthma has for the last year been controlled by two puffs of Seretide twice a day, and little else.
  1. Dr H considers that lack of adequate Seretide led to poor asthmatic control, and that it was tantamount to no anti-inflammatory drug being delivered to J. Had it been delivered, the escalation of treatment that took place over the years would not have been expected. There has been no change in environmental factors to explain the change in J’s health. The only other explanation for her presentation now is that she has severe asthma that is coincidentally in remission, a prospect that cannot absolutely be dismissed but is remote.
  1. Dr C considers that J cannot have been given her oral Prednisolone either, as this would in her view have delivered a substantial dose of steroid, which J cannot have been getting. In this she differs from Dr H. I do not find it possible or necessary to resolve this issue.
  1. The parents’ account is that they did their best to give J her Seretide (which she did not like) by giving it when asleep, and her Prednisolone by dissolving the tablet and administering it orally by syringe, rewarding J with chocolate for taking it. They missed some occasions, and J sometimes refused, but they honestly thought they were doing what was required and using the required doses.
  1. It was at first thought, including by Professor B, that evidence about prescription uptake strongly demonstrated a gross underuse of Seretide and Prednisolone. On closer inspection, it shows an overuse of Salbutomol and a somewhat lower uptake of the steroids than would be expected, but not such as might lead to any definite conclusion. Likewise, the amount of drugs discovered in the home after the children’s removal does not suggest hoarding.
  1. There are a number of possibilities in relation to the prescription evidence. It is on the face of it not inconsistent with the parents’ evidence that they were giving J the quantities that were dispensed, at the level they thought was being prescribed. Alternatively, the parents may have disposed of unused medication, something that they deny.
  1. Taking the evidence as a whole, I accept the unanimous medical evidence that J was not receiving any Seretide. My findings go further than the parents’ concessions:

(i) I reject their case that they were routinely giving J Seretide while J was asleep, a convoluted and inconvenient procedure.

(ii) I do not accept that they genuinely believed that administration of Seretide to a sleeping child would be effective. Any reasonably competent parent would realise that this could not possibly be so, and M, as a nurse, would know that it was absurd. I do not accept that the parents learned to do it by watching nurses administer a different drug (Salbutomol) during sleep, or that they were encouraged or allowed to do so themselves; if that happened, it can have been on no more than an insignificant handful of occasions.

(iii) The fact that the parents never spoke to anyone about a practice of administering drugs to J in her sleep, even remaining silent when J’s inhaler technique was being checked, makes it highly improbable that they were in fact doing it.

(iv) I accept the evidence of Dr C that both she and the nurses would repeatedly reinforce the need for good inhaler technique to M and that the parents knew that J needed a good dose of steroids every day.

(v) I do not accept that the parents genuinely thought J should be on one puff of Seretide twice a day, when she had been prescribed two puffs for more than two years. The fact that some letters and labels described the dosage in different ways did not in my view mislead the parents; they are now relying on it after the event. If there was any doubt about whether the parents know the correct dosage, it is firmly dispelled by Mrs H’s evidence about her conversation with M on 10 November 2011.

(vi) M is unlikely to make careless mistakes about J’s prescriptions. She was punctilious with the school about J’s medication, and took a zero tolerance approach to any stepping out of line on their part.

  1. My view of the parents’ evidence about Seretide causes me to doubt that they administered Prednisolone in the way that they described (orally by syringe, rather than simply dissolving it in J’s breakfast), but I can reach no clear conclusion about this. At all events, I find that she was probably receiving considerably less Prednisolone than was being prescribed:

(i) M understandably did not like the use of steroids.

(ii) J did not like taking her medication, and the parents are both notably ready to defer to her.

  1. Insofar as the prescription records show an inflow of steroidal medication into the home, I conclude that it cannot have been effectively administered to J. The medical opinion is to this effect, and I accept it.
  1. My assessment of the parents is therefore that they are not reliable witnesses in matters relating to J’s health, either in relation to the administration of medication, or in relation to the management of J’s acute episodes. Their evidence about asthma treatment has evolved in response to the case as it has developed. The concession that ‘only one puff’ of Seretide was being given was made on the opening day of the hearing. Their evidence about J’s supposed ALTEs is, I find, exaggerated and unreliable in its detail. They have both given unreliable descriptions of J’s condition to the school and to the emergency services.

 

 

The final part is what lifts the case from being very fact specific  (I’ve done an insane amount of care proceedings in twenty years of practice, but have never come across one that arose from parents not giving their child asthma medicine  – some that come close on children with naso-gastric tubes for feeding perhaps) to one of broader interest.   (the underlining is my own, for emphasis)

 

  1. My final observation is that each of the doctors recognised that there are lessons to be learned from J’s case. Paediatricians are conditioned to trust parents, particularly where a child has a genuine medical condition. That instinct was strong in this case, despite indications that it needed to be examined. Dr C had concerns about the reliability of these parents as long ago as 2008 but, having taken advice from her child protection lead, she did not pursue her doubts, a decision she regrets. The doctors will form their own conclusions, but those may include the following:

(1) Faced with a possible conflict of interest in circumstances involving serious consequences, the preservation of a working relationship with parents cannot take precedence over the interests of the child.

(2) The principle of diagnostic parsimony (c.f. Occam’s Razor) proposes that simple explanations for medical conditions are exhausted before complex and unusual treatments are attempted.

(3) Fragmentation of responsibility between different hospitals carries the risk that the whole picture is not seen and understood by anyone – in J’s case, no proper meeting was held until November 2011, and even that did not involve the LA.

(4) Where dilemmas of this kind arise, involving social as well as medical issues, doctors and schools should not be reluctant to call for a comprehensive assessment that can only be carried out by the ordinary child protection services.

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