An interesting case decided by Recorder Howe QC, which touches on a number of important legal principles (and also to boot contains a lot of masterful understatement like this :- “Unfortunately, T was not proficient with the use of the toaster”)
T (A Child: Care Order: Beyond Parental Control: Deprivation of Liberty: Authority to Administer Medication) [2017] EWFC
http://www.bailii.org/ew/cases/EWFC/OJ/2018/B1.html
The key legal questions in this case were :-
1. When a Local Authority has DOCUMENTS (but not witnesses) who assert A, how much weight does the Court give that hearsay evidence where a live witness disputes A ?
2. Does the limb of threshold ‘beyond parental control’ require the Local Authority to prove any culpability on behalf of the parent – or is it effectively a ‘no fault’ threshold?
3. If a child’s liberty is being restricted AND a care order/interim care order is in force, does Keehan J’s assertion in Re AB (that a parent can consent to this, but not where a care order/ ICO is in force) remain good law after the Re D appeal?
4. Where a child is prescribed medication and the parent objects to that medication, can the Local Authority use their powers under s33 of the Children Act 1989 to consent to it, or is an order of the Court required?
These are all really good questions, and I’m pleased to see so many of the cases that I’ve blogged about coming into this judgment.
T was undoubtedly a very challenging child. He is now 13 years old and has autism. Dr Singh described his behaviour at the residential unit
67. As explained by Dr Singh in his report, T exposes himself to the likelihood of significant harm by:
(a) pulling out his hair from his head and pubic area;
(b) dismantling appliances and furniture;
(c) ripping off and tearing his clothes;
(d) smearing faeces and
(e) kicking-in doors when angry.
68. When angry and upset, Dr Singh describes that T will:
(a) bite;
(b) gouge at the faces of staff members;
(c) pull hair;
(d) spit;
(e) pull staff by the arms;
(f) hit and scratch.
Within the mother’s care, T was doing many of these things and I give this as a particular example
The behaviour did escalate and T then began digging holes in the walls, which was an activity M was unable to prevent and exposed T to the risk of significant harm as he would expose electrical wiring when digging into the walls within the house. I was told about 1 very large area on one wall that T had dug into that measured some 2 meters or so across and as far up the wall as T could reach
Let us look at the first question
1. When a Local Authority has DOCUMENTS (but not witnesses) who assert A, how much weight does the Court give that hearsay evidence where a live witness disputes A ?
The Recorder analyses the law in this regard with precision and brevity. I can’t improve on that, so I’ll just quote him in full
In describing the background to the current applications, I will address some matters upon which the parties do not agree. I will give my findings on these disputed matters when setting out my narrative of the history and when doing so I apply the following principles:
(i) The burden of proving an allegation rests with the party who is making it;
(ii) The standard of proof is the simple balance of probabilities;
(iii) Findings must be based on evidence and on inferences that can properly be drawn from the evidence but cannot be based on mere suspicion or speculation;
(iv) Evidence cannot be evaluated and assessed in separate compartments. A judge in these cases must have regard to the relevance of each piece of evidence to other evidence and exercise an overview of the totality of the evidence in order to come to a conclusion.
12. In her closing submissions, Ms Wordsworth relies upon the judgment of the President in Darlington Borough Council v M and Others [2015] EWFC 11, as endorsed by the Court of Appeal in J (A Child) [2015] EWCA Civ 222, where at §56 Aitkens LJ said:
“Hearsay evidence about issues that appear in reports produced on behalf of the local authority, although admissible, has strict limitations if a parent challenges that hearsay evidence by giving contrary oral evidence at a hearing. If the local authority is unwilling or unable to produce a witness who can speak to the relevant matter by first hand evidence, it may find itself in “great, or indeed insuperable” difficulties in proving the fact or matter alleged by the local authority but which is challenged.”
13. It is M’s case that she has provided her response to a number of matters in the witness box and, where her oral evidence is in conflict with a recording put to her, it is submitted that I should prefer M’s oral evidence where the author of the recording has not appeared before me.
14. Hearsay evidence is admissible in these proceedings concerning a child but I must carefully assess the weight to be given to any hearsay evidence, particularly where that hearsay evidence is disputed by M. When undertaking this task, I have reminded myself of the views expressed by Hayden J in Westminster City Council V M, F and H [2017] EWHC 518 (Fam), where at §25 he said:
“The Local Authority must, ultimately, assess the manner in which it considers it can most efficiently, fairly and proportionately establish its case. The weight to be given to records, which may be disputed by the parents, will depend, along with other factors, on the Court’s assessment of their credibility generally. Here, the reliability of the hearsay material may be tested in many ways e.g. do similar issues arise in the records of a variety of unconnected individuals? If so, that will plainly enhance their reliability. Is it likely that a particular professional e.g. nurse or doctor would not merely have inaccurately recorded what a parent said but noted the exact opposite of what it is contended was said? The reaction of witnesses (not just the parents), during the course of oral evidence, to recorded material which conflicts with their own account will also form a crucial aspect of this multifaceted evaluative exercise. At the conclusion of this forensic process, evidence can emerge and frequently does, which readily complies with the qualitative criterion emphasised in Re A (supra)…
I would add to my analysis above the observations of Dame Elizabeth Butler Sloss in Re T [2004] EWCA Civ 558 at §33:
“Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.”
The LA have to take stock as to whether to call witnesses where the documents are disputed – it is going to depend on the nature of the evidence and the presentation of the witness who disputes the documents. There’s obviously a risk in not calling the witness, but it has to be weighed up how to efficiently fairly and proportionately establish the LA case.
2. Does the limb of threshold ‘beyond parental control’ require the Local Authority to prove any culpability on behalf of the parent – or is it effectively a ‘no fault’ threshold?
The law on this is annoyingly fuzzy.
In Re K (Post-Adoption Placement Breakdown) [2013] 1 FLR 1, His Honour Judge Bellamy, sitting as a Judge of the High Court (this is the ‘forensic ferret’ case) considered that it was NOT necessary to prove or for the Court to find that the parents were culpable or responsible for the child being beyond parental control – it was sufficient to prove that the child WAS suffering significant harm and that the child was beyond parental control with the fact that he or she was beyond parental control being a contributory cause to the harm. A contributory causal relationship between the harm and the child being beyond parental control suffices. (i.e Re K says that you can find threshold met on beyond parental control WITHOUT the parents having to be to blame for this)
BUT
In Re P [2016] EWFC B2 (26th January 2016), Her Honour Judge Redgrave gives a judgment in which she expressly disagrees with the decision of HHJ Bellamy in Re K. The facts of the case were similar in many ways. The child P had suffered significantly disrupted early attachments that had caused her to develop serious mental health problems. P was adopted but that adoption broke down as a result of the behaviour displayed by P. The local authority did not attribute any culpability to the parents for P suffering harm as a result of her behaviour but attributed the significant harm to P being beyond parental control. Upon the local authority applying to withdraw the proceedings, HHJ Redgrave was invited by the parents to determine whether threshold would have been met had the proceedings continued; the central issue being whether the section 31(2)(b)(ii) requirements were met on the facts as alleged by the local authority. It was argued by the parents that as P was exposing herself to significant harm as a result of her mental health problems, there was no evidence that this was in any way attributable to the fact that she was beyond parental control and, therefore, threshold was not satisfied.
80. At §15 of her judgment, HHJ Redgrave says:
“Under the Children and Young persons Act 1969 the courts had the power to remove a child from the care of his/her parents if it was satisfied that the child in question was beyond parental control. It was not necessary to show serious harm, or likelihood of harm. The Children Act 1989 changed the law and required harm/likelihood of harm to be proved and for it to be attributable to either the care given by the parents, or the child being beyond parental control. In my judgment the ordinary grammatical construction of the section requires the establishment of a causal connection by evidence, however slight. That is lacking in the documents filed in this case and with respect I cannot agree with Paragraph 149 of HHJ Bellamy’s judgment in Re K (see above). Therefore I give the local authority permission to withdraw these proceedings on the basis that it is unlikely on the current evidence to be able to prove threshold.
There is no evidence of any kind that either the mother or the father are culpable in any way for the behaviour of their daughter and the harm she has suffered or is at risk of suffering in the future. They have fought tirelessly for her to receive the treatment she needs and in my judgment these proceedings should never have been issued.”
I will be very candid – I don’t like the decision in Re P – I think it is important, and indeed fundamental to the construction of the threshold criteria that there are some situations in which a child can be suffering significant harm as a result of their behaviour being uncontrollable where the Court can make the orders needed to manage the child WITHOUT the parents being blamed. It crops up a lot on adoption breakdown cases, but also happens with parents as here who are dealing with incredibly challenging behaviour. So I have a horse in this race – I think Re K is right, and Re P (respectfully) is wrong.
So this part of the judgment had me on the edge of my seat (I’m easily intrigued)
86. If I was to follow the reasoning adopted by HHJ Redgrave, a child who was suffering significant harm by reason of being beyond the control of the parent, but due to the characteristics of the child’s illness or impairment and not for any lack of parental effort or ability, the child could not, if the parent objected, be removed to safe care as threshold would not be met.
87. The facts of T’s case demonstrate the difficulty. M does not recognize that T is beyond her control. M has not been able to prevent T from exposing electrical wires, removing pipes from the boiler so as to cause the leakage of carbon monoxide or eating and smearing his own faeces. M has been unable to prevent T from removing his own clothes or been able to require him to dress when in company. T was, in my finding, beyond M’s control. When undertaking all of these activities T has, in my finding, suffered significant harm or been likely to suffer significant harm.
88. I have found that M has minimized the difficulties that she has experienced in providing care for T. His actions arise as a result of his ASD and learning difficulty and Dr Singh has advised that any home carer would be unlikely to be able to meet his needs. If I was to accept that section 31(2)(b)(ii) was only activated if a child was beyond parental control by reason of some want of effort or ability by a parent rather than as a consequence of T’s impairments, that would undermine the ability of any local authority to protect children without embarking on a finding of fault exercise that will, in many cases such as this, be an enquiry that the local authority will wish to avoid.
89. I have said repeatedly, during the course of this hearing, that caring for T must have been hugely challenging for M. It is impossible not to have sympathy and compassion for her given how T’s behaviours developed in ways that M could not have predicted. I have made findings that M did not always accept and act on advice and those findings do, in my judgment, satisfy section 31(2)(b)(i) and I so find. However, in my judgment, it is important to recognize that section 31(1)(b)(ii) was intended to be a true ‘no fault’ limb of the threshold criteria. A child can expose itself to harm by reason of its own behaviour, whatever the cause for that behaviour, and the state needs to have the ability to intervene and protect such children from the harm they cause to themselves if they do not respond, or are unable to respond, to the attempts of their parents or carers to protect them. Therefore, it is necessary in my judgment to interpret the wording of section 31(2)(b)(ii) “in the manner which best gives effect to the purposes the legislation was enacted to achieve”.
90. In my judgment it is immaterial whether a child is beyond parental control due to illness, impairment or for any other reason. The court simply has to consider if, on the facts, the child is beyond the control of the parent or carer. If that condition is satisfied, the court then has to determine if the child is suffering or is likely to suffer significant harm as a result of being beyond the control of the parent. If the answer to that 2nd question is ‘yes’, then section 31(2)(b)(ii) threshold is, in my judgment satisfied.
91. I find, on the basis of the factual determinations I have made in the paragraphs above, as summarized in §87, that the threshold criteria under section 31(2)(b)(ii) are satisfied.
It isn’t a settled or binding answer, but it is certainly weight to put into the scales when deciding whether the Re K (no fault needed) or Re P (parental fault is needed) line is to be followed. I agree with these conclusions. I hope that it gets properly cleaned up in precedent soon.
3. If a child’s liberty is being restricted AND a care order/interim care order is in force, does Keehan J’s assertion in Re AB (that a parent can consent to this, but not where a care order/ ICO is in force) remain good law after the Re D appeal?
I’m pleased to say that Recorder Howe QC and I are in accord on this. (I’m not sure that I ever quite grasped WHY Re AB reached that decision, but we both agree that it remains the law, having been only mentioned en passant by the Court of Appeal in Re D)
136. I have been referred to the decision of the Honourable Mr Justice Keehan in AB (A Child: Deprivation of Liberty) [2015] EWHC 3125 (Fam).
137. I have also considered the judgment of the President in Re D (A Child) [2017] EWCA Civ 1695. At §109, Munby P says:
“I should, for the sake of completeness, refer to [Keehan J’s] intervening judgment in In re AB (A Child) (Deprivation of Liberty: Consent) [2015] EWHC 3125 (Fam), [2016] 1 WLR 1160. This concerned a 14-year old boy, subject to an interim care order, who had been placed in a residential children’s home in circumstances which Keehan J found met Storck component (a). The question was whether, given the existence of the interim care order, either the parents or the local authority was entitled to consent for the purposes of Storck component (b). Keehan J held that they were not. That, as will be appreciated, is not an issue before us on this appeal. ”
138. Given that appeal decision in Re D did not affect the judgment given in Re AB, that decision remains good law. At § 29 of his judgment in Re AB, Keehan J stated:
“Where a child is in the care of a local authority and subject to an interim care, or a care, order, may the local authority in the exercise of its statutory parental responsibility (see s.33(3)(a) of the Children Act 1989) consent to what would otherwise amount to a deprivation of liberty? The answer, in my judgment, is an emphatic “no”. In taking a child into care and instituting care proceedings, the local authority is acting as an organ of the state. To permit a local authority in such circumstances to consent to the deprivation of liberty of a child would (1) breach Article 5 of the Convention, which provides “no one should be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law”, (2) would not afford the “proper safeguards which will secure the legal justifications for the constraints under which they are made out”, and (3) would not meet the need for a periodic independent check on whether the arrangements made for them are in their best interests (per Lady Hale in Cheshire West at paragraphs 56 and 57)”.
139. No party has sought to argue before me that the local authority can give consent to T’s deprivation of liberty at X unit and there is no dispute between the parties that, in the event that I approve the care plan and make a care order, a declaration authorizing the deprivation of T’s liberty is required. In the absence of such a declaration, T’s continued placement at X unit would be unlawful and in breach of article 5 ECHR. As set out by Keehan J at §34 of Re AB “The local authority, as a public body is required by s.6 of the Human Rights Act 1998 not to act in a way which is incompatible with a Convention right”.
And that leaves, finally, the medication question
4. Where a child is prescribed medication and the parent objects to that medication, can the Local Authority use their powers under s33 of the Children Act 1989 to consent to it, or is an order of the Court required?
Although in this case there had been a lot of discussion about risperidone (an anti-psychotic medication) and melatonin (a drug which promotes sleep) the actual prescription by a GP/Psychiatrist had not yet happened. It was plain that mother objected to her son being given this medication and therefore the Court was asked to give a decision as to whether IF such medication were prescribed the LA could use its powers under a Care Order (section 33 Children Act 1989) to overrule mother’s objection or whether a Court would have to be asked to decide.
(So the Court isn’t DECIDING here whether T should be given the medication, just whether if doctors said he should take the medication and mum says no, can the LA consent to it or does there need to be a Court order?)
There isn’t a direct answer to this question in the law, or clear understanding of how far section 33 extends or what its limits are.
Recorder Howe QC answers the question by looking at two areas where the Courts have ruled that section 33 is not enough to overrule a parent and a Court order is needed instead.
One is vaccination, following MacDonald J in Re SL (Permission to Vaccinate) [2017] EWHC 125 (fam), it is not appropriate for the local authority to override M’s wishes by giving its consent under section 33(3) Children Act 1989
And the other is parent’s choice of names (our old friends Preacher and Cyanide https://suesspiciousminds.com/2016/04/15/preacher-and-cyanide/ )
In the case of C (Children) [2016] EWCA Civ 374,
http://www.bailii.org/ew/cases/EWCA/Civ/2016/374.html
178. “In my judgment notwithstanding that a local authority may have the statutory power under section 33(3)(b) CA 1989 to prevent the mother from calling the twins “Preacher” and “Cyanide”, the seriousness of the interference with the Article 8 rights of the mother consequent upon the local authority exercising that power, demands that the course of action it proposes be brought before and approved by the court”.
180. Having considered in some detail the authorities referred to above, this local authority does, in my judgment, require the authorization of the court for Risperidone and Melatonin to be administered to T. I find this for 3 main reasons:
(a) each drug, whilst commonly used with autistic children, has recognized and serious side effects;
(b) T’s impairments are such that I am satisfied that he would have more difficulty in expressing that he was suffering side effects, were they to arise;
(c) If the administration of vaccinations and the change of a child’s first name are such serious interferences with the article 8 rights of a parent, so as to require an order under the inherent jurisdiction of the High Court to override the will of a parent, however unreasonable that parent may appear to be, it would be a nonsense for the reasonable concerns of this mother not to be of sufficient gravity to justify similar protections.
181. I appreciate that my decision undermines the power the local authority thought it had available to it under section 33(3) CA 1989. During the hearing of submissions, I raised myself the proposition that the administration of medication over a period of time, that is not a one-off or a short course, such as is the case with vaccinations and, indeed is the case with a change of name decision, might need to be seen differently. Dosages of medications can change. Frequency of administration of the drug can require alteration and it is simply not practicable for alterations in drug regimes to be managed by the court. However, having set that particular hare running, I have reached the conclusion that the administration of these medications, and especially the risperidone, involves such an interference with the article 8 rights of M, that any decision as to whether administration is to be started must be made by the court. Whether it is then necessary for the court to remain involved once that initial decision has been made, is a matter upon which I will hear argument at the next hearing.
So there you have it – some reported cases don’t tackle any questions of wider import beyond the case in question, some deal with one or two, but this one deals with four – the last one being potentially very significant for cases where a Local Authority is caring for children who need medication.
suesspiciousminds 