This is a judgment from care proceedings, but it may also be of interest to Court of Protection practitioners. It does not reach binding precedent, or even guidance, but it does set out how in a particular case a different approach paid dividends.
W (A Child), Re  EWHC 2844 (Fam) (25 October 2021)
The Judge is Mr Justice Hayden, who is always worth reading.
It relates to a child who was very ill
W has serious disabilities arising from a genetic defect. He requires the use of a wheelchair at all times. He has several diagnoses which include epilepsy and a condition known as Aerophagia, a swallowing disorder. W has been known to self-harm and occasionally to hold his breath to the point where he loses consciousness. This raft of disabilities necessitates W having one to one care at all times during the day and two to one care for moving and handling. P’s breath holding sometimes causes hypoxic episodes. He also has a Mic-key button device (gastrostomy feeding tube) to his abdomen.
And over a period of time there had been conflict between the parents and the medical professionals over W’s treatment.
- A private care group were responsible for delivering professional care to W. However, they encountered a great deal of resistance and what they perceived to be combative interference with their staff, by W’s parents. In particular, it was said of them:
- On 4th March 2021, the agency indicated that they would no longer be prepared to offer a service to W, due to the magnitude of these identified difficulties. This decision was triggered by an incident the day before when W had experienced a hypoxic episode. W’s parents are said to have refused to allow the care staff on duty to call for an ambulance immediately which had the consequence of placing him at risk as his saturation levels fell below the key threshold. W’s mother, M considered the readings normal for W. When the ambulance service attended, they found W to be well. There was a planned admission for W to Alder Hey Children’s Hospital to investigate the hypoxic episodes. The parents were said to have been distrustful of the care staff who felt “undermined and belittled”. The parents’ behaviour at Alder Hey was also said to be “highly concerning” although they were described as “appropriate and respectful on the ward”.
- The parents were, in my assessment, genuinely shocked when the care agency withdrew. They considered that they had an excellent working relationship. M acknowledged that she had been very emotive, but she emphasised her concern and passion. She also recognised that she was a prolific emailer. When W was born, he was given a limited life expectancy which he has already vastly exceeded. M believes that her advocacy of W’s interests and rights has played a large part in W thriving to the extent he has. I have no doubt that, at least to a very significant extent, she is correct.
- It is a sad fact that the Family Court, from time to time, encounters parents of profoundly sick children or children with disabilities who become drawn into high octane conflict with the raft of professionals who seek to support their child’s care. Many judges, over the years, have speculated why this scenario arises with such regularity. Sometimes, it may be a displacement of loss and accompanying anger which lands upon the medical and other professionals in the absence of any other target. Often, it may reflect a parent’s sense of powerlessness
In this case, an expert Dr Hellin, a psychologist who is about to get extremely busy, was instructed to assist the Court.
- Dr Hellin was clear that the court would not be best assisted by evaluating the issues in terms of the parent’s perceived failures or any mental health difficulties. It requires a recognition by the professionals that these are ordinary parents dealing with extraordinary circumstances. Dr Hellin considered that the entire aetiology of these challenging circumstances is better understood within “a different paradigm” and should be considered from “a systemic or organisational perspective”.
- Ms Cavanagh QC and Ms O’Neil, on behalf of F, submit that this assessment has unlocked this case. It is rare for one assessment to change the landscape so comprehensively, but I entirely agree with their submission. Dr Hellin’s conclusions have been conveniently summarised thus:
“There are certain features of the system around [W] which make it more, rather than less, likely that problems will arise in it. First, it is a very complicated system.
Second, the stakes are very high. Ultimately, this is about keeping a child alive and ensuring his best possible quality of life.
Third, commissioners face what many would consider to be impossible decisions about resource allocation.
Fourth, care work is intrinsically stressful, and the pressures on health professionals and care staff have been vastly increased by the Covid-19 pandemic.
These factors all affect the emotional climate of the system around [W] and the relationships between those components of the system.
The system around [W] has become sensitised and inflamed. Feelings have run high and perspectives have become polarised and entrenched.
[M] and [F], individual professional staff and their organisations have become stuck in polarised beliefs about each other.
It has become difficult for the parents and for professionals to respond moderately in ways that sooth rather than exacerbate the dynamic tensions between the different parts of the system.
I hope it will be apparent that this analysis does not apportion blame.
The family, commissioners and health and social care providers are all affected by the dynamic context in which they are trying to do their best.
Rather than looking to change the parents, I recommend a systemic intervention drawn from organisational psychology, psychodynamic psychotherapy, group analysis and systems theory.
The intervention would assist all agencies and the parents to understand the dynamic processes that have led to the current difficulties, to step back from mutual blame and recrimination, to establish working practices which will contain and diminish sensitivities and optimise collaboration between the different parts of the system. (my emphasis)
I recommend that an organisational or a systemic supervisor/consultant is employed to work with the system and facilitate systemic meetings within which the aims set out in the paragraph above would be addressed.
The involvement of the Court has radically shifted the dynamics of this system.
The involvement of their legal representatives and of the Court, a neutral authority, has diluted the emotional intensity of the polarised “them and us” dynamic which previously existed between the parents and the health/care providers.”
- Already it is clear to me, before any work is undertaken, that this exposition of the dynamic has helped both the care workers and the parents better to understand the challenges that each face. The Court is all too acutely aware of the colossal pressure placed on limited resources. This is a day to day reality for the medical and caring professions. It has endured for many years but has been cast into stark relief by the pandemic. Dr Hellin considers this backdrop serves further to inflame the environment around W. Perspectives had become polarised and difficult to placate. Dr Hellin’s proposals are predicated on promoting mutual understanding and diminishing mutual blame. At risk of repetition, I emphasise that even though work has not yet started, the manifest sense of the approach is compelling and has already diluted the emotional intensity and significantly bridged the polarity that has impeded progress in this case for many months and which has undoubtedly been inimical to W’s care.
As I said at the outset, this case doesn’t purport to tell other Courts that this is the approach to be adopted or that a one-size-fits-all approach would be right – it is dealing with the particular circumstances of this individual case, but it is certainly an approach that is interesting and may be worth people thinking about.
It is important to emphasise that the provision “not being what it would be reasonable to expect a parent to give” is not to be regarded as an abstract or hypothetical test but must be evaluated by reference to the circumstances the parent is confronting i.e. what would it be reasonable to expect of a parent in these particular circumstances, recognising that in a challenging situation many of us may behave in a way which might not objectively be viewed as reasonable. The test is not to be construed in a vacuum nor applied judgementally by reference to some gold standard of parenting which few (if any) could achieve. On the contrary, it contemplates a range of behaviour, incorporating inevitable human frailty. The reasonableness of the care given requires to be evaluated strictly by reference to the particular circumstances and the individual child.
- I would add that a similar dynamic and frequently for the same reasons identified here, arises in the Court of Protection when dealing with incapacitated adults. This is a particularly common situation in the context of young adults in their late teenage years and early twenties, but by no means confined to it.