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Medication, ooh, medication, medication – that’s what you need

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.

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Beyond parental control

Threshold criteria – the legal ‘key’ which allows a Court to make a Care or Supervision Order, is defined by section 31 of the Children Act 1989 and it usually relies on the child having suffered or there being a likelihood that the child will suffer significant harm, as a result of the parent behaving in a way that would be unreasonable to expect of a parent.  There is, however, the much less frequently seen other limb which is that the child is ‘beyond parental control’.

 

There are volumes of reported cases about threshold on the first limb, but very little on the second, so even though this is a Circuit Judge decision and not binding precedent, it is worthy of discussion.

Re P (Permission to withdraw care proceedings) 2016

http://www.bailii.org/ew/cases/EWFC/OJ/2016/B2.html

I’ve written at some length about one of the cases cited in this judgment, Re K, and the facts here are somewhat similar.

https://suesspiciousminds.com/2012/07/30/forensic-ferrets-or-standing-in-the-way-of-beyond-parental-control/

It relates to adoptive parents of a child, where the placement breaks down, and at much the same time, the relationship between the parents and the Local Authority similarly hits the buffers. (This was the second such breakdown – the child having been placed with different people previously, which makes things even sadder and harder)

In Re P, the Local Authority had issued care proceedings, but by the conclusion of the case were seeking leave to withdraw. That was agreed by everyone, but what was contentious was the basis of that withdrawal. The Local Authority contended that threshold was crossed but it was not in the child’s welfare interests to make an order, whereas the parents contended that threshold was not crossed.

It was common ground that as a result of her life experiences, the child was in a seriously bad way. She had been sectioned, diagnosed with an emotionally unstable personality disorder and had been self-harming. It was in no doubt that she had suffered significant harm. As a factual matter, she was probably beyond parental control. (Whether anyone could have exercised control with those particular difficulties is a considerable question)

The principal legal issue was whether you should approach threshold like this

  1. The child has suffered significant harm AND
  2. She is beyond parental control

Which was how the LA argued it

 

OR

  1. The child has suffered significant harm AND
  2. She is beyond parental control AND
  3. There is some casual link, even if it is not the only or dominant cause, between the child being beyond parental control and the significant harm.

As the parents were arguing.

For clarity, in the first instance, there’s no sense of blame, and in the second, there’s at least some slight degree of blame or responsibility for at least some of the harm.

If the parents have done nothing wrong, and the child being beyond their control is a CONSEQUENCE of her difficulties and the harm she is experiencing, rather than her difficulties and the harm being at least in small part a CONSEQUENCE of her being beyond parental control, then should threshold be crossed?  Can threshold be crossed if a parent has done nothing other than what any parent could have done in the circumstances?

It might have been quite easy for the parents in this case to say “Well, the LA aren’t seeking a finding that we did anything wrong, so let’s just agree threshold is crossed, and accept this plate of fudge” but I think that it raises an important point of principle and they were right to stand their ground.

As the transcript of judgment contains matters that are emboldened, I can’t use my usual approach of putting the judgment in bold, so bear with me. These are the relevant bits of the judgment

 

  1. S.31(2) of the children Act 1989 provides:-A court may only make a care order or supervision order if it satisfied (a) that the child concerned is suffering, or is likely to suffer, significant harm and that harm or likelihood of harm is attributable to…….ii) the child’s being beyond parental control. Mr. Sinclair relies upon the judgment of H.H.J.Bellamy, sitting as a judge of the Family Division in Re:K(Post Adoption Placement Breakdown) [2013]1FLR. where a child had suffered extreme damage in the care of her birth parents, resulting in an attachment disorder; expert evidence concluded that no blame could be attached to the adoptive parents for the child’s difficult behaviour and that the child was likely to suffer significant harm because of her reactive attachment disorder and not because she was beyond parental control.
  2. HHJ.Bellamy referred to the observations of Lord Nicholls in Lancashire v B [2000] 1FLR: ” ….the phrase “attributable” in S.31(2)(b) connotes a causal connection between the harm or likelihood of harm on the one hand and the care or likely care of the child’s being beyond parental control on the other….. the connection need not be that of a sole or dominant or direct cause and effect, a contributory causal connection suffices”. At para. 149 he concluded that if a child suffered significant harm as a result of a disorder which effected her behaviour and as a result of that behaviour the parent is unable to control the child, that lack of control was at the very least, a contributory cause of the likelihood of future harm. Accordingly he made a care order, in the belief that it was not open to him to ward the child. Subsequently the Court of Appeal discharged the care order and made her a ward of court.
  3. Mr. Sinclair urges me to take a similar approach in this case and conclude that the harm caused to T. or likely to be caused to her whilst a result of her mental health diagnosis was/is attributable to her being beyond parental control – at least in part. He has also referred to para.3.1 to the 2008 guidance to the Children Act for the use of local authorities that the court is required to determine as a matter of fact whether a child is beyond parental control and if he/she is it is immaterial who, if anyone is to blame. This paragraph has been omitted from the current guidance.
  4. Conversely , Mr. Parker on behalf of the parents argues that the comments of Lord Nicholls make it clear that the inclusion of the word “attributable” results in the need to make a causal connection between harm and being beyond parental control, albeit it need not be the only or dominant cause; that on the facts of this case, whilst there is overwhelming evidence that T. has suffered and is likely to continue to suffer significant harm, there is no evidence that this is attributable in any way to the fact that T is beyond parental control. He refers to the authorities of Re: O [a minor] (care proceedings: education) 1992 4 All ER 905 and M v Birmingham City Council [1994] 2 FLR 141 Stuart-White as authority for the proposition that lack of control involved parental culpability. Having read these two judgments in my view both learned judges assumed this proposition to be the case. I have also considered Re:L (a minor) Court of Appeal 18.3.1997
  5. Ms. Jones on behalf of T. (who visited me this morning in the company of two members of staff from the hospital, where she is an in-patient), and Ms.Jones pointed out that the guardian (and her predecessor) seriously questioned the actions of the local authority in issuing these proceedings. I voiced that opinion at an early CM hearing and I urged the local authority to consider at a senior level whether these proceedings should continue. Despite the views of the previously allocated social worker in her first and second statements that the parents were not a protective factor for T. and the assertion that the local authority needed to share parental responsibility for T, T’s previous treating psychiatrist was quite clear in the professionals’ meetings that the parents had only ever had T’s interests at heart and were indefatigable in supporting her and trying to obtain the best treatment. At paragraph 30 of Ms.Jones’ skeleton argument she says “It should be made very clear in the judgment that the parents are not culpable in any way, that there is no evidence to support inadequate parenting and that they have shown themselves to be committed parents and advocates for their daughter.”
  6. 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.
  7. 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.   [underlining mine on this paragraph]

 

There is a broader issue and that was highlighted considerably in the Selwyn 2014 research on adoption breakdowns https://suesspiciousminds.com/2014/04/10/adoption-breakdown-research/  which showed that once adopters came to local authorities with problems or the placement was beginning to show cracks, the supportive element seemed to be frequently replaced with a combative and blaming approach. I don’t know the background and facts of this particular case other than what is in the judgment, but it does seem to me that blame was the last thing that was needed.  I wish this young woman, and her parents, well for the future and hope that she can get the help that she clearly needs and that after this hearing, everyone involved in her life will be able to pull together and work with each other.

Forensic ferrets (or “Standing in the way of (beyond parental) control”)

Standing in the way of  (beyond parental) control 

A discussion of the little-used limb of the threshold criteria, and the interesting and deeply sad case of  Re K (A Child :Post Adoption Breakdown) 2012.   Plus, a judicial determination that Judges are not ferrets.  (I see how, with the ermine, folk might get confused)

The case can be found here (how I love Baiili)  :-

http://www.bailii.org/ew/cases/EWHC/Fam/2012/B9.html 

I have to say, in what’s coming up to eighteen years of care law  (my God, some of the babies I dealt with at the start of my career may now, hopefully, be going to university, and almost certainly will be legitimately buying alcohol)  I have only used the ‘beyond parental control’ limb twice; both times in relation to cases involving adoption breakdowns.

The attractiveness of it is that one does not necessarily need to apportion blame or find that it is poor or unreasonable parenting that has led to the significant harm; and it is for that reason that when it crops up, it tends to be in cases where a deeply damaged child is losing their second family. 

In this case, the Local Authority and the adoptive parents were at loggerheads about who was to blame for “Katie’s” parlous state. Without a doubt, the adoptive placement had broken down, and the relationship between “Katie” and her parents was very fraught.

This was an exchange of messages after Katie had been out of the home for a year

  1.  ‘Katie this is the first time we have heard from you in almost a year. We are glad that you liked your Christmas presents, and are enjoying your new mobile phone.

You will always hold a special place in our hearts and family. You may think that we don’t care but actually we all care more than you can ever imagine and everyone hopes that your future will be good. You will not know what we think and feel, unless you talk to us. Your medals were thrown away at Christmas when we were so upset that we were not allowed to give you anything or see you. We are sorry because it could easily have been prevented…

 

You are a very intelligent young girl and have always got good results, which we are certain will continue. You are also a talented dancer and a caring person.

 

We continue to do our best for you and are delighted to hear from you, although we know that it is difficult for you, Mum & Dad’

 

  1. Katie’s response was robust. She replied,

‘you are NOT my mum and dad for starters!…you have wrecked my childhood and you still are by contacting me, checking up on me on [Facebook]. I don’t want anything to do with you. Im extremely happy here at Greendale and I don’t need you interfering in my life anymore. You have caused enough damage in my life…’

[I pause here to say, that in the light of this sort of stuff, it is astonishing that the LA had such hostility towards the adoptive parents, and one wonders how much of the reasoning for that just didn’t come through in the judgment. The tone might not be perfect, but it’s far from awful or provocative]

Katie was diagnosed as having a reactive attachment disorder, and the Judge was deeply sympathetic to the suggestion that the efforts the parents made, which would have been kind parenting for another child simply did not work with Katie. At the same time, the Judge recognised that this was not in any sense Katie’s fault, but a symptom of her reactive attachment disorder.

[I know, you’re saying “get to the ferrets, I want to know about the ferrets”  – be patient. Your ferret-wishes will be granted]

  1. Dr Richer notes that the parents’ have strong moral values and focus on high achievement, ‘both usually applauded in our society’. However, this does not equip them easily to accept Katie unconditionally – ‘weaknesses, oddities, fears and all’. Dr Richer said that,

‘the parents need to examine to what extent their well intentioned efforts to help Katie, (which would have succeeded well with attached children) were actually perceived as emotionally distant, cold, critical and controlling. And which have lead others unfairly to characterise them as controlling, seeing them through Katie’s eyes. But the acid test here is not whether the parents have done the “right thing” from the standpoint of usual rules and values, they clearly have, but whether they have done the right things from the standpoint of achieving success with Katie. Here they have encountered the same difficulties which have defeated so many families of late adopted children.’

  1. Parents faced with the kind of difficulties these parents were faced with

’31. …get caught in a vicious circle where their normal behaviour, which works with most children, often only serves further to alienate a child like Katie. To call these not uncommon parental reactions emotionally abusive is not only inappropriate and wrong, but cruel. The vicious circles that the parents and Katie got into are seen in many families with insecure adopted children, where well intentioned efforts to help the children and structure their behaviour and protect them, only lead to the child becoming more resentful and alienated and angry…

48. Families who adopt children like Katie are often caught in what seems like a double bind. If they ease off close structuring of the child’s behaviour, the child may behave recklessly and/or antisocially, if they try to guide and structure they run the high risk of being seen by the child as restrictive and untrusting and be seen by others as controlling.’

And that was really the crux of the problem. Everyone was agreed that a Care Order had to be made, but in order to make a Care Order, there had to be threshold. 

One would think, as an outsider, that the ‘beyond parental control’ was made for that sort of situation, and one might think that the entireity of this ligitation could have been avoided had a really bland threshold  (channelling those really bland ‘unreasonable behaviour’ petitions that are written by those rare divorce lawyers who are kindly and get the job done without fuss) been prepared.

Perhaps  “Katie has suffered significant harm as a result of absconding from her placement and being unhappy there, this harm has arisen from her being beyond parental control, which is caused by her reactive attachment disorder and not due to any conscious desire to cause harm on the part of the carers, or to cause trouble on the part of Katie. It is just very sad and unfortunate that this placement, which was intended to make everyone happy, has instead made them miserable”

Anyway, that’s not what happened.  The LA threshold document contained 39 allegations, some of which were deeply contentious, and the Court ended up trapped in a battle that ran thus :-

 The LA say that Katie is beyond parental control and that’s the fault of the adopters.

The adopters say Katie is beyond parental control and that’s not their fault.

Katie says she has been significantly harmed, but it’s not her fault.

(I again, go back to the honourable and worthy practice of being bland and inoffensive if it gets the job done)

The Court was not terribly helped by the expert on this particular issue (not because he was being unhelpful, but because he was speaking the truth. The legal niceties here were contributing to screwing this poor child up) :-

  1. Dr Richer had some difficulties with the expression ‘beyond parental control’. As he put it, it is not a ‘blanket’ term; ‘it is a matter of how much and when’. There were times when Katie conformed to the family’s routine and other times when she became distressed. That distress manifested itself in behaviour such as destruction of property, running away and taking things that weren’t hers.
  1. Dr Richer acknowledged that some people will perceive a finding that a child is beyond parental control to amount to labelling and therefore likely to have a negative impact on the child. As for Katie, Dr Richer’s opinion is that if the court makes a finding that Katie is beyond parental control then, in the short term, it is likely that she will brush it aside as being ‘all their fault’. However, in his answers to written questions he makes the point that,

’34. The trouble with the legal process surrounding Orders etc. is that they are predicated on events being someone’s fault: either the parents’ failed or Katie was too bad. This is unhelpful to the therapeutic process. Since the legal process exists, the challenge would be to explain it to Katie in a way which is helpful to her. I have tried to do that in my report, emphasising, in paragraph 50, the absence of blame. So the impact on Katie is determined by how well the decisions, whatever they are, are explained to her. It would be an uphill task since it risks leaving her with a sense that it was her fault that she left her home, and so by implication she is no good, or that it is all her parents’ fault, a conclusion which will be equally damaging in the longer term.

  1. In Dr Richer’s opinion, Katie does not behave the way she does because she is beyond parental control. From his perspective as a clinical psychologist, if Katie is likely to suffer significant harm (and he did not disagree with the proposition that she is) then that is because she is suffering from a Reactive Attachment Disorder and not because she is beyond parental control.

So, broadly, the Court had to grapple with, and find a resolution to, the question “Can a child suffer significant harm as a result of being beyond parental control without it being anyone’s fault?”

The answer, is “Yes”   and the Court sets out some excellent reasoning as to how it reached that answer.

  1. ‘the child’s being beyond parental control’
  1. That leads on to consideration of the expression ‘the child’s being beyond parental control’. There is little authority on the meaning of this expression. It is an expression that appeared in earlier child protection legislation. Section 1(2)(d) of the Children and Young Persons Act 1969 provided that proof that a child ‘is beyond the control of his parent or guardian’ was sufficient of itself to empower the court to make a care order. The Children Act 1989 makes two important changes to that wording. First, the expression ‘he is beyond parental control’ is replaced by ‘the child’s being beyond parental control’. Second, proof of ‘the child’s being beyond parental control’ is not of itself sufficient to empower the court to make a care order. The court must be satisfied that the child ‘is suffering or is likely to suffer significant harm…attributable…to the child’s being beyond parental control’.
  1. The first reported authority is M v Birmingham City Council [1994] 2 FLR 141. Stuart-White J there said.

‘…Subsection (2)(a) contains a verb, in what is unquestionably the present tense…whereas subs (2)(b)(ii) contains no verb in the present or any other tense. It must be read together with the opening words of subs (2)(b) as follows: “…that the harm, or likelihood of harm, is attributable to – (ii) the child’s being beyond parental control.” The expression contained in subs (2)(b)(ii) is, it seems to me, plainly a substantival expression capable of describing a state of affairs in the past, in the present or in the future according to the context in which it falls to be applied. No doubt this is why the concept of likelihood finds no place at this point in the subsection.

Two other matters in relation to subs (2)(b)(ii) have been canvassed in argument. In relation to those I am prepared to assume for the purpose of this appeal, without deciding the point. That ‘parental control’ refers to the parent of the child in question and not to parents, or reasonable parents, in general…’

  1. The only Court of Appeal authority addressing the concept of ‘being beyond parental control’ is L (A Minor) 18 March 1997 (unreported). Butler-Sloss LJ says,

‘It is suggested most attractively by Mr Jubb in a long, careful, comprehensive skeleton argument and short, succinct oral argument to us that in order to show that a child is beyond parental control you must show some misfeasance by the parents. There is almost no authority on the phrase “beyond parental control” and certainly no authority to support the proposition, bold proposition as Mr Jubb is prepared to accept it as, that he makes to us today. We are asked to look at the useful guidance to the Children Act, Volume 1, under Court Orders, which says at paragraph 3.25:

“…the second limb is that the child is beyond parental control…It provides for cases where, whatever the standard of care available to the child, he is not benefiting from it because of lack of parental control. It is immaterial whether this is the fault of the parents or the child. Such behaviour frequently stems from distorted or stressed relationships between parent and child.”

That seems to me to be a useful summary of how those who put the Act together saw the use of what is a long-standing part of the previous child legislation of “beyond parental control”. I consider that we should be very careful not to look at the words of the Children Act other than broadly, sensibly and realistically…Quite simply this child is beyond the control of his parents. It is extremely sad. It is not a case of apportioning blame. It is a case of recognising a very worrying situation and one would have hoped, trying to work together, to make something of this child.’

  1. The Children Act 1989 Guidance and Regulations, to which Butler-Sloss LJ referred, was updated in 2008. The text and tone of the latest guidance is noticeably different from the earlier version. The guidance now states:

‘3.41 If the child is determined by the court as being beyond parental control, this means that, whatever the standard of care provided by the parents, the child is suffering or is likely to suffer significant harm because of lack of parental control. This requires the court to determine whether as a matter of fact, the child is beyond control: it is immaterial who, if anyone, is to blame. In such cases, the local authority will need to demonstrate how the child’s situation will improve if the court makes an order – how his behaviour can be brought under control, and why an order is necessary to achieve this.’

And this was how the judge dealt with threshold  (note the coruscation of the way the LA had chosen to put the case. I can actually feel in my shoulder blades how counsel for the LA must have felt whilst the Judge read all this out)

  1. These proceedings began just over a year ago. During that time the parents have attended every hearing. It has at all times been plain that they resist the making of a care order. It was with some surprise, therefore, that on the first day of this final hearing, after allowing time for discussions, I was informed that they were willing to concede both threshold and the making of a final care order. In light of my knowledge of this case I was concerned about the appropriateness of making an agreed order without hearing some evidence. I heard Dr Richer. That reinforced my view that it was not appropriate simply to nod through a final care order. I continued with the hearing as a contested hearing.
  1. I am in no doubt that that was the right decision. Hearing the evidence in this case has been highly informative. It has illuminated issues that raise significant concerns about the local authority’s future management of this case.
  1. The parents concede that at the relevant date Katie was likely to suffer significant harm. On the evidence, they were right to make that concession. It is equally plain from the evidence that Katie is beyond parental control. The question of substance has been whether the likelihood of harm is attributable to Katie being beyond parental control or to the reactive attachment disorder from which she suffers.
  1. It is plain from the guidance given by Lord Nicholls in Lancashire County Council v B that the likelihood of harm may be attributable to more than one cause. A contributory causal connection suffices. In this case it could, of course, be said that the fact that Katie is beyond parental control is itself attributable to the fact that she is suffering from reactive attachment disorder. That may be so. However, that argument cannot be allowed to subvert the primary purpose of s.31(2) which is one of child protection.
  1. This final hearing has been dominated by the issue of culpability. Notwithstanding its belated decision to seek to satisfy the court that threshold is proved on the basis of s.31(2)(b)(ii) rather than s.31(2)(b)(i) the local authority has continued to put before the court a case which, at its heart, is one based upon culpability.
  1. I noted earlier Dr Richer’s criticisms of the local authority for the tone and content of the written questions put to him in response to his report. On behalf of the local authority Miss McGrath sought to reassure me that the local authority’s questions to Dr Richer do not reflect the attitude of Children’s Social Care towards these parents. In light of my review of the history of this case since Katie’s arrival at Greendale, I am not reassured.
  1. If there was any remaining doubt about the local authority’s attitude towards these parents that doubt was removed by Miss McGrath in her closing submissions. Referring to the events that have taken placed in the period since Katie has been at Greendale, Miss McGrath submitted that the parents had utterly failed to understand the impact of their behaviour on Katie. She said ‘I don’t know how any local authority could be expected to work with parents who show those attitudes’. She described the mother’s evidence as ‘chilling for its lack of sensitivity and understanding’. She urged me not to reinforce the parents’ views that the problems are all other people’s fault and not theirs. She submitted that the parents are concerned about their reputation in the community and the impact that a care order may have upon the way they earn their living. Having urged me to avoid rhetoric and proceed only on fact, she asked me, rhetorically, why it is that stones have been thrown at a local authority that has put Katie’s interests at the forefront of its mind. Why is it, she asked, again rhetorically, that the parents are not able to agree that Katie is beyond parental control? The answer, she submits, is that these parents are entirely adult focussed. How any reasonable person could fail to accept that Katie is beyond parental control is, she said, ‘something the local authority struggles to grasp’. Where, she asked, again rhetorically, is the love that goes with the understanding of attachment disorder?
  1. The parents have had to contend with some profoundly difficult problems which they had not anticipated when they agreed to Katie being placed with them. Coping with those problems has at times (and particularly over the last two years) been rendered more challenging as a result of their difficult relationship with the local authority. I have had the opportunity to observe the parents in court several times over the last twelve months. They have attended every court hearing. During the course of this final hearing they gave evidence over the course of more than three hours. I have formed a favourable impression of them. In their evidence I found them to be open and straight-forward.
  1. Sympathy for the parents’ predicament must not blind the court to the undoubted fact that they have not always responded as appropriately as they might have done to the problems that have arisen in parenting Katie. They accept that. Having successfully parented Chloe and Rachel they have struggled to adapt their parenting style to address the challenges that Katie has presented. They have struggled to accept and follow advice. They have behaved inappropriately in some of the things they have said, done and written. Some of the things they have said, done and written have undoubtedly caused Katie distress. Miss McGrath challenged the mother that some of her responses to Katie had been motivated by spite. Looked at in isolation, I accept that that is how it may appear. But the parents’ responses to Katie should not be looked at in isolation. They have to be looked at in the context of the fact that Katie suffers from reactive attachment disorder of childhood.
  1. Although these parents are not above criticism, their parenting, insensitive and inappropriate as it has sometimes been, has not been the cause of Katie’s reactive attachment disorder. The cause of her attachment disorder was the appalling parenting she received in her first four years of life. The fact that Katie is beyond parental control is a manifestation of the attachment disorder. I am not persuaded that the shortcomings in the parenting provided by Katie’s adoptive parents has either caused or exacerbated the problem. Dr Richer was clear that in his professional opinion these parents are not responsible for Katie’s difficulties. As I noted earlier, he said that parents faced with the kind of difficulties these parents were faced with

’31. …get caught in a vicious circle where their normal behaviour, which works with most children, often only serves further to alienate a child like Katie. To call these not uncommon parental reactions emotionally abusive is not only inappropriate and wrong, but cruel…’

I accept Dr Richer’s evidence.

  1. Though I do not accept the local authority’s position on parental culpability, I am satisfied that the facts set out in the threshold document justify a finding that Katie is beyond parental control. They also justify a finding that Katie was likely to suffer significant harm and that that likelihood was attributable to her being beyond parental control. I am satisfied that the threshold is met.

Forensic ferrets

I adore how the polite exasperation pours through these sentences. One can almost feel the Judge reaching for a bottle of Milk of Magnesia and being able to attribute this particular ulcer to this particular issue…

  1. Before I consider the history of the placement it is necessary to say something about the presentation of the local authority’s records. In charting the history of a local authority’s engagement in the life of any family, its records are a key source of information. When a family becomes involved in court proceedings, those records are likely to be an important part of the forensic enquiry. In this case, the standard of the local authority’s presentation of that material to the court has fallen far below that which the court is entitled to expect.
  1. The required content and format of court bundles is set out in simple, clear, easy-to-follow terms in Practice Direction 27A to the Family Procedure Rules 2010. The Practice Direction’s repeated use of the word ‘shall’ makes it clear that compliance with the Practice Direction is mandatory. The Practice Direction requires that bundles ‘shall contain copies of all documents relevant to the hearing, in chronological order…paginated and indexed’. It goes on to provide that the bundle ‘shall be contained in one or more A4 size ringbinders or lever arch files (each lever arch file being limited to 350 pages)’.
  1. In the index to the hearing bundle in this case, section K is described as ‘Social Care documents’. This section runs to 1,350 pages. It is contained within three lever arch files. The documents in this section are not in chronological or, indeed, in any other discernable order. There is no indexing of these documents. Several documents appear more than once at different points throughout this section. Even accepting that some degree of redacting may have been necessary, it is difficult to understand the purpose of including more than 150 pages in which the entirety of the text has been completely blacked out.
  1. This key section of the hearing bundle is disorganised and chaotic. In the words of Bracewell J, it is ‘a jumbled mass of documentation’ (Re E (Care Proceedings: Social Work Practice) [2000] 2 FLR 254 at p. 257). It has hindered rather than assisted the forensic process. Twenty years ago Ward J (as he then was) memorably made the point that ‘judges are not forensic ferrets’ (B-T v B-T [1990] 2 FLR 1 at p.17). The pressure under which modern family judges are required to work is such that they simply do not have the time to be ‘forensic ferrets’ searching through inadequately prepared and disorganised hearing bundles in order to identify key information.