England and Wales Family Court Decisions (High Court Judges)

IN THE FAMILY COURT
(Sitting at COVENTRY)

		Case number omitted Royal Courts of Justice Strand, London, WC2A 2LL
		26 April 2018

This judgment was handed down in open court

Sir James Munby, President of the Family Division :

1. This is a very sad case, unhappily all too reminiscent of such recent cases as Re X (A Child) (No 3) [2017] EWHC 2036 (Fam), [2018] 1 FLR 1054, and Re F (A Minor: secure accommodation resources) [2017] EWHC 2189 (Fam).
2. I am concerned with a young person, Z, now 16 years old, whose many difficulties have been manifested in repeated acts of self-harming and attempts at suicide. Z's parents have nothing with which to reproach themselves. They have done everything possible for Z, but the sad reality is that Z is, both as a matter of ordinary language and within the meaning of section 31(2)(b)(ii) of the Children Act 1989, "beyond parental control." Accordingly, and very properly, the final care order which I made on 12 April 2018 recited the parents' acceptance that:

"threshold has been met on the basis that [Z] is beyond parental control without culpability on behalf of the parents."

As the Guardian said in her final report dated 10 April 2018, "they have done their very best in some extremely difficult circumstances."

3. The care proceedings in relation to Z were begun in the Family Court at Coventry. It had become apparent that what Z needed – and needed desperately – was help and treatment in a clinical, therapeutic setting. Frustrated in their endeavours to achieve that outcome, the Local Authority commenced the care proceedings in June 2017. By December 2017, when Z unexpectedly had to leave (I emphasise for reasons having nothing to do with Z) what was proving to be a supportive placement at AA, there was a general consensus that what Z needed – and needed very desperately – was a placement in a low secure unit (LSU). But Z was returned, in accordance with the Mental Health Act 1983, to AB. Few thought AB a suitable placement for Z; for Z had previously been placed at AB (which was not a SLU) and had not benefited from the regime there: see paragraph 17 below. So, this move to AB would almost inevitably necessitate a further move for Z. On 6 December 2017 the Local Authority was notified that there were no LSU beds in the United Kingdom that would accept Z. The matter was brought before Her Honour Judge Watson on 8 December 2017. She directed the attendance of the NHS England Commissioning Board (NHSE) at a further hearing listed before His Honour Judge Cleary on 18 December 2017.
4. At that hearing, Judge Cleary had the benefit of a statement from NHSE and NHSE was represented. The order he made set out the parties' positions:

"(a) … The Local Authority is disappointed that currently there is no LSU bed for [Z] in the United Kingdom. The Local Authority is disappointed that [Z] is not currently receiving any therapy whilst … temporarily placed and that [Z's] holistic needs are not being met.

(b) The parents are disappointed that [Z] has not to date received the therapeutic input [Z] so much needs. They wish to see [Z] placed in an appropriate unit that will meet [Z's] needs prior to a final order being made and for the LA care plan to reflect the placement and treatment plan that [Z] needs.

(c) The Guardian is extremely concerned about the potential impact on [Z] of a move from [AA] to [AB]. She is concerned about the suitability of this placement to meet [Z's] needs in the interim pending the identification of an alternative placement. The Guardian would like to see the Local Authority's final care plan include an exit plan from [AB] if possible and plans for future placement and how [Z's] therapeutic needs will be addressed. The Guardian supports the transfer of this case to the President."

The order recorded:

"it is accepted that NHS England has taken all appropriate steps to identify a suitable substantive bed for [Z] at an LSU

… NHS England submitting that the placement at [AB] is a safe placement."

5. At the end of the hearing, Judge Cleary allocated the proceedings to a High Court Judge and transferred them to me for a further case management hearing on 20 December 2017.
6. When the matter came before me on 20 December 2017, NHSE was again represented, on this occasion by Leading Counsel. The order I made set out the parties' positions:

"(a) … The Local Authority is disappointed that currently there is no LSU bed for [Z] in the United Kingdom. The Local Authority awaits the outcome of the assessment commissioned through NHS England. The Local Authority is pleased to note that if [AC] deem it is appropriate that they can care for [Z] there will be a bed available for [Z].

(b) The parents are disappointed that [Z] has not to date received the therapeutic input [Z] so much needs. They wish to see [Z] placed in an appropriate unit that will meet [Z's] needs prior to a final order being made and for the LA care plan to reflect the placement and treatment plan that [Z] needs.

(c) The Guardian is extremely concerned about the potential impact on [Z] of the move from [AA] to [AB]. She is concerned about the suitability of this placement to meet [Z's] needs in the interim pending the identification of an alternative placement. The Guardian would like to see the Local Authority's final care plan to include an exit plan from [AB] if possible and plans for future placement and how [Z's] therapeutic needs will be addressed."

The order recorded that:

"[name] Mental Health NHS Foundation Trust are carrying out an assessment of [Z] on 20.12.17, with a view to assessing [Z's] suitability for admission to [AC] … If clinically suitable, a bed will be available at [AC] for [Z]."

7. So that there was no risk of slippage, I gave appropriate directions to enable the matter to be re-listed before me for a further case management hearing on 15 January 2018.
8. By the date of that hearing, as the order I made recorded, "NHS England have confirmed that [Z] has a place at [AC] LSU and is due to move on 17.01.18." NHSE was again represented by Leading Counsel. The order set out the parties' positions as follows:

"(a) The Local Authority is pleased to note that [Z] has been offered a placement at [AC] LSU and is due to move on 17.01.18. Ultimately the Local Authority seeks a Care Order for [Z].

(b) The parents are disappointed that [Z] has not to date received the therapeutic input [Z] so much needs, they are pleased that a placement has been identified for [Z] and hope that an appropriate treatment plan will now be formulated.

(c) The Guardian is pleased that a placement has been located for [Z] at [AC] which has been assessed as being able to meet [Z's] needs …"

9. At the end of the hearing, I gave further directions with a view to the matter being listed before me for an issues resolution hearing / effective final hearing on 12 April 2018. I excused NHSE from further attendance or participation in the proceedings.
10. Before me on 12 April 2018, there was, entirely appropriately and understandably, a uniform consensus, threshold being properly conceded, that the only form of order which could meet Z's many needs was a care order. I need not go into any detail, but that was a consensus which in the circumstances was, in my judgment, inescapable and obviously, if sadly, inevitable.
11. The fundamental reality confronting everyone at this hearing was, as the Guardian pointed out in her Report, that there was no clear timescale for Z's discharge from AC. Moreover, and as I explained in Re X (A Child) (No 5) [2017] EWHC 2141 (Fam), para 8, the decision as to whether and for how long Z should remain at AC is one for the responsible clinicians or the First Tier Tribunal. The local authority's final care plan, dated 12 April 2018 and incorporating various amendments agreed at court that day, addressed this reality. Accordingly, there were two fundamental components to the care plan:

i) Z is to remain in a low secure unit in order to engage in long term psychological and therapeutic intervention in a secure setting to work on past trauma and in order for Z's mental health to remain stable. Accordingly, Z will remain at AC until ready and fit for discharge.

ii) Although it is unknown what the future holds for Z at present, it is anticipated that when Z is ready for discharge, a residential placement in the community would be sought.

12. I approve the care plan. I am satisfied that it is the best that can be achieved in very difficult and challenging circumstances.
13. The plan is that AC will notify the local authority 6 weeks prior to any plan of discharge and that a joint protocol meeting will take place, in conjunction with Z's parents, to discuss in the light of an appropriate assessment as to where Z would be best placed, the plan of discharge into a therapeutic environment. This important part of the care plan is underpinned by a recording in the order I made that:

"at the CPA meeting on 07.02.18 the Responsible Clinician agreed that when it is deemed that [Z] is ready for discharge into the community he/she will provide a minimum of a 6 week notice period to the Local Authority to enable them to secure the most appropriate residential setting for [Z], which meets [Z's] complex need and that the medical professionals will work with the Local Authority to enable them to identify such placement."

14. Given Z's age, the care plan makes appropriate provision for Z's transfer to the local authority's Leaving Care Team, with appropriate continuing transitional involvement of the existing social work team and, in due course, a referral to the local authority's Adult Social Services. In this context I remind the local authority of what I said in Re X (A Child) (No 5) [2017] EWHC 2141 (Fam), para 9:

"I add this, not that the local authority needs reminding: X, as the subject of a care order, is entitled to enjoy, both now and, in accordance with the 'leaving care' legislation, after she leaves care when she reaches her 18^th birthday, all the benefits which will accrue to her as a looked after child. So, the local authority will remain under a duty to this very vulnerable young woman even after her 18^th birthday. Given her age, it is very important that the 'leaving care' planning for X begins immediately. This is a matter to which the guardian rightly drew attention. It is critically important."

15. This case is yet another chastening illustration of just how inadequately we provide for some of our most vulnerable and disturbed children. Further comment would be superfluous. The facts speak eloquently enough.
16. I cannot pass by, however, without setting out the powerful if measured words of Z's experienced Guardian, Amy Withers. Her report makes for saddening and depressing reading. Supported by much detail which there is no need for me to recite, and which it would be wholly inappropriate to disclose, her report includes the following:

"It is my view that this is not a case whereby parents have failed to recognise and act upon their child's needs but a case of [Z] being failed by support services, namely the NHS/CAMHS.

… My strong view is that this is a family and indeed a child who have been extremely let down by services who are supposed to support a family and a child with such needs. It is also clear … that [Z's parents] were desperate for support and requested this appropriately. I can see that the Local Authority have tried their very best to assist but the bottom line is that this is a case whereby the National Health Service and/or Child and Adolescent Mental Health Service should and could have provided more support, assistance and treatment to [Z] throughout [Z's] childhood."

17. Discussing the period from April 2017 until the decision in January 2018 that Z should move to AC, the Guardian says this:

"Between April and June 2017, [Z] had required 16 separate medical interventions for self-harm … [The Team Manager] had requested another Mental Health Act assessment and once completed was informed that [Z] did not meet the criteria for any mental illness or require a treatment plan. Although the Local Authority were trying their best to support [Z], the NHS/ CAMHS continued to say that [Z] did not meet the criteria for assessment and/or appropriate treatment. By … self-harming at … , it forced the NHS' hand to assess [Z] and [Z] was Sectioned under the Mental Health Act …

… It is so disheartening to say that even whilst in the hospital setting, [Z]'s needs have still not been prioritised or met to a good enough standard … [Z] remained without a specified treatment plan for many weeks … there was no clear plan of assessment or treatment … there was also no consideration of the impact of a lack of appropriate care plan upon [Z]. As [Z]'s Guardian, I was extremely concerned by this, as it was my view that this was deprivation of … liberty without meaningful treatment.

… At the directions hearing held on 07/07/2017 … [my] concerns were further intensified by the lack of clarity from Mental Health Services regarding a diagnosis, and a care or treatment plan or even a simple plan of what was actually going to happen next for [Z]. I was also extremely concerned about the nature of any placement which may be available for [Z].

On 10/07/2017 [Z] was … assessed to remain under Section 3 of the Mental Health Act at [hospital]. At that time, there was still no treatment plan available and [Z] was without a key worker … it had a very detrimental impact upon [Z'] general wellbeing, as well as exacerbating [Z's] mental health issues even further. Again, there was a complete lack of recognition of the impact of this upon [Z] who was not even included in any care planning regarding … hospital admission or the treatment/care plan. On 21/07/2017 Mr Justice Keehan's comments about this situation was that it was not helpful or sensitive to [Z's] needs and he urged the Local Authority to make a complaint about the treatment [Z] had received from the hospital at that point and due to the general lack of communication between them and the Local Authority and parents.

Unfortunately, whilst in this 'limbo', [Z]'s behaviour became increasingly unmanageable … the placement was only containing [Z], not treating [Z].

Following on from this was a period of various assessment and discussions about whether [Z] met the criteria for medium secure unit or low secure unit. It was all very vague and confusing with different doctors offering different opinions with the consensus being that [Z's] behaviour was too much to manage in a low secure but … not criminal or against others so [Z] did not meet the criteria for a medium secure unit … [the move to AA] … On 11/12/2017 [Z] was moved [to AB].

Despite the positive progress that [Z] had been making [at AA], this was affected because [AB] is not considered to be a therapeutic unit and therefore [Z] was not provided with any further therapy whilst there. This was not an appropriate resource for [Z] and once again [Z's] needs were not prioritised or even considered. NHS England's response was that this was an appropriate resource as it was keeping [Z] safe.

… [Z] once again was in limbo with the placement containing [Z] instead of providing … the treatment … needed."

18. Noting that at AC there is now "a clear treatment plan in place for [Z]", the Guardian concluded this part of her report with this general observation:

"The history of this case is that CAMHS will undertake an assessment but then say that [Z] does not meet the criteria or if [Z] does they will not provide a service because [Z] moves to a different placement because of … mental health difficulties. There has been no follow-on service and no consistency for [Z], even when in hospital; [Z] has been moved around with no consideration for … stability, consistency or welfare. At points along the way we have had a chicken and egg situation – [Z] needs treatment but cannot access it because of … self-harming behaviour, but does [Z] behave in this way because [Z] needs the treatment? There has just been a catalogue of [Z's] needs not being identified and met, which I strongly feel has led to this current situation."