Sitting at Exeter
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF R (A CHILD)
B e f o r e :
| A LOCAL AUTHORITY
|- and -
R (by her children's guardian) (3)
1st Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP.
Telephone No: 020 7067 2900. Fax No: 020 7831 6864 DX 410 LDE
KATIE GOLLOP QC & SARAH POPE (instructed by Rosie Bracher Solicitors) for the first respondent Mother
VICTORIA HOYLE (instructed by Andrew Jay and Co) appeared for the second respondent Father
JAMES HAYWARD (instructed by Ian Walker Family Law and Mediation Solicitors) appeared for the Guardian
Crown Copyright ©
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
MR. JUSTICE BAKER:
R'S CONDITION AND DISABILITY
i) Rett-like syndrome;
ii) severe dystonia;
iii) autonomic dysfunction;
iv) central visual impairment;
v) no communication except by eye movement, head movement and rare smiles;
vi) upper limb fixed flexion;
vii) lower limb fixed extension;
ix) severe scoliosis;
x) previous life-threatening events;
xi) aspiration with right middle lobe pneumonia in August 2017.
BACKGROUND TO THESE PROCEEDINGS
"there was no time to plan. We just had to go. It was made very clear to me that R's life was in danger and that I needed to prepare myself for her death. I think I convinced myself that she was going to die and, when we were told she was not going to die, I was overwhelmed by relief. As the enormity of what happened sank in, I also became petrified that she might have to go through again what she had just managed to survive. I thought over everything she had been through in her life, the surgery, dystonia and the contractions and everything that she had to come, more of the same, and the proposal of really serious spinal surgery, and I couldn't bear it for her. R has made a full recovery from this, but I don't think I have. I don't think anyone who is not R's mother could ever really understand. It has been truly traumatic and affected my thinking and mood and relationships with everyone around R for a very long time".
"Overall, I believe that R's quality of life is less than I witnessed previously some months ago….but I have no objective way of measuring this and can only go on what I myself have witnessed and the subject report of others….at Mother's request, I have had several very prolonged frank discussions regarding the appropriateness of continuing life-sustaining treatment for R, the last and most complex of these on Tuesday. These discussions have been difficult but very important for her. J feels that R's quality of life now is so poor that it may now be time to withdraw life-sustaining treatment, which of course for R is currently only artificial feed and hydration via the gastronomy, as she is unable to do this herself. I have explained that such a decision will be very difficult for us to make locally, as I am aware that J's opinion is not shared by all health, education and social care professionals that had been involved with R, but none of these have to live with R day to day and witness her situation.
I have said that such a decision could only be made with the input from professionals experienced in these discussions, well-versed in ethical debate and willing to provide Mother with a clear answer set in a legal framework. We do not have this facility locally or, I suspect, even within our region. For this reason, I would be very grateful if you could instigate this within Great Ormond Street, and apologise that I have not been able to communicate this with you prior to transfer".
i) R is a very vulnerable child who suffered a life-threatening event on 11th May 2017.
ii) The mother has a long history of social care involvement arising out of her care of R, and has not always been able to provide consistently good enough care for her daughter.
iii) The mother's decision-making in respect of R's care needs was chaotic following the life-threatening event of 11th May 2017.
iv) Since the life-threatening medical event of 11th May 2017, the mother's decision-making in respect of R's medical treatment has not been in R's best interests and was coloured by her persistent belief that R's quality of life no longer justified the medical interventions provided to her.
v) Since the event of 11th May 2017, the mother has not always complied with medical and/or care advice, or agreements as to how R's needs should be met.
i) R is an extremely vulnerable eleven-year-old girl with very complex medical, care and social educational needs, who suffered a life-threatening event on 11th May 2017, an aspiration on 21st August 2017 and is entirely dependent on others for her care.
ii) After the life-threatening event in May 2017, the mother made a number of decisions concerning R's care which were chaotic and not in R's best interests, and which gave rise to a risk of significant harm.
iii) On 22nd August 2017, the mother refused to give her consent to antibiotics being given to R in circumstances where, on medical advice, she plainly needed them, and as a result, R was at risk of significant harm.
iv) In the weeks leading to the start of these proceedings, the mother had formed the view that R's quality of life was so poor that her treatment should be restricted in the event of a further life-threatening event. That view was influencing the decision that the mother was making at that stage so that, in the event of a further life-threatening event, it was likely that the mother would refuse to agree to treatment and that as a result, there was a likelihood that R would suffer significant harm. In her evidence and submissions on her behalf, the mother has stressed that her views have now changed on this issue since the start of the proceedings.
v) Over a prolonged period, the mother has not always followed advice concerning R's treatment and care and, as a result, and given R's very vulnerable condition, there was a likelihood that the R would suffer significant harm.
"The level of harm and likelihood of it occurring is too high, especially when taking into consideration the mother's history of non or limited engagement and working against recommended plans of action. R is thriving in DHR, showing that she is enjoying her life, building positive relationships with staff. R has a right to life and prohibition of torture. The mother's ongoing belief that R has a limited quality of life and the opportunity to restrict her access to medical services and treatments, means that R is highly likely to continue to experience significant harm in her mother's care. It is my belief that the mother does not have the capacity to change within a suitable timescale for R, and that R would be unsafe both physically and emotionally in her care".
That passage and others in the assessment do not, in my judgment, reflect the degree of change in the mother's position during the currency of these proceedings. I also, with respect to Ms. Luscombe, do not think it appropriate to refer to "torture" in the way that she did in that paragraph.
"To ensure R receives high quality care to meet her complex needs in a stable and specialist environment [and] to enable the mother to remain involved in R's life with regular contact and contributing to key decisions while she receives the support she needs through attunement work and psychodynamic psychotherapy/counselling, as per Dr. Gardner's recommendations….The local authority believes that it is unsafe for R to return to the care of her mother until this counselling/psychotherapy has been completed or been evidenced to have made significant changes to the mother's functioning…It is the view of the local authority that R's needs are currently best met in a specialist residential placement, namely DHR, with the security of the full care order to reduce the risk of R experiencing significant harm. It is the view of the local authority that the mother has the potential to resume the care of R if she completes the identified attunement work and psychodynamic counselling/psychotherapy, at least to the point where all parties involved assess that R's fluctuating health needs and complex care will no longer trigger her attachment responses".
"The local authority proposes that the mother will access psychodynamic counselling/psychotherapy, as follows:
1. The local authority will support the mother making the necessary application for healthcare provision of the same through her NHS GP, but would expect her to make the necessary application urgently.
2. The local authority will refer the mother to adult mental health services, the local authority partnership trust, for assessment of her need for the same, again as a matter of urgency.
3. The local authority's children's services cannot normally fund therapeutic work for adults.
4. In the event that there is no offer to provide or to contribute to the cost of the mother's psychodynamic counselling/psychotherapy from healthcare and/or adult services, by the time she has completed the initial phase on her own and first review of her attunement work, direct work with R as well, estimated to be ten sessions for the first phase and six weeks thereafter for subsequent reviews, the local authority's children's services will meet the cost of psychodynamic counselling/psychotherapy on the following terms:
i) The mother is engaged with the attunement work up to that point;
ii) The identity of the psychodynamic counsellor/psychotherapist is agreed with the local authority;
iii) The cost of the psychodynamic counselling/psychotherapy is capped at a figure to be provided;
iv) The cost and/or contributions will continue to be sought from healthcare, but children's services will meet the balance;
v) The costs will be paid subject to review each six months and subject to the counsellor and therapist considering that:
a) The mother has engaged with the psychodynamic counselling/psychotherapeutic work over the period of review, and
b) Reunification/rehabilitation remains a realistic objective to be achieved within two years of commencement of the counselling therapy.
vi) The period for the psychodynamic counselling/psychotherapy will be two years for the commencement and children's services cannot make any commitment to further funding costs of the same beyond that period.
vii) The identity of the counsellor/therapist will be agreed at the child in care review meeting on 20th March, if not before. The counsellor/therapist will have access to such local authority documents as are required. [Documents are then identified]
viii) The independent reviewing officer will have such local authority documents as are required. [A number of documents are then suggested]"
"In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child"
and further in s.32(5) and (6), which provide:
"(5) A court in which an application under this part may extend the period that is for the time being allowed under subsection (1)(a)(ii) in the case of the application [in this case, 26 weeks] but may do so only if the court considers that the extension is necessary to enable the court to resolve the proceedings justly.
(6) When deciding whether to grant an extension under subsection (5), a court must in particular have regard to
(a) the impact which any ensuing timetable revision would have on the welfare of the child to whom the application relates, and
(b) the impact which any ensuing timetable revision would have on the duration and conduct of the proceedings;
and here, 'ensuring timetable revision' means any revision of the timetable under section 1(a) for the proceedings which the court considers may ensue from the extension".
"The purposes of an interim care order are to enable the court to safeguard the child's welfare until such time as it is possible to decide whether or not to make a care order, and not a means by which the court should continue to exercise a supervisory role".
"justice must not be sacrificed on the altar of speed".