England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT AT RHYL
IN THE MATTER OF THE CHILDREN ACT 1989
AND THE ADOPTION AND CHILDREN ACT 2002
AND IN THE MATTER OF K (A CHILD)

		15th October 2015

JUDGMENT 15^th October 2015

HIS HONOUR JUDGE GARETH JONES:

1. I have before me an application for a Care Order in respect of a child I shall identify as K, born on 8^th August 2014, who is therefore fourteen months-old.
2. As identified in an earlier judgment at the outset to the hearing, the parties to the application are X County Borough Council, the mother and the father of K, the "maternal grandparents" as I shall describe them, and K himself.
3. I identified the representation of the parties also in my earlier judgment when I dealt with the adequacy of the agreed threshold document, and the concessions made by the parents therein.
4. I have read the relevant documents in the trial bundle and can briefly summarise the background as follows:
5. This hearing was scheduled to take eight days; it occupied the Court's time for a shorter period of three days, on 5^th, 7^th and 15^th October 2015. No oral evidence has been adduced with regard to the outcome, and indeed there is consensus with regard to that.

The background to the application

6. The parents, who are unmarried, began their relationship in or about 1996. They have now separated. In addition to K they have two other children; R who is sixteen years-old, born on 30^th June 1999, and L, born on 29^th November 2008, who is therefore six years-old. R and L live with their mother. R is a demanding child to care for. He is an insulin dependent diabetic, who has been diagnosed with attention deficit hyperactivity disorder, who is frequently non-compliant with his medication, and thus is regularly presented at hospital, often in poor health.
7. The father, during the parents' relationship, appears to have been the main bread winner and worked long hours, and much of the day-to-day care of the children was the mother's responsibility. With two children, in retrospect, the additional responsibilities of a third child were beyond her capacity to cope. The father has admitted only limited day-to-day parenting of the children, particularly in their formative years (see paragraph 3.10 of the Guardian's Final Report).
8. The parents' relationship was often in difficulty, and there are concessions with regard to domestic violence and domestic acrimony. R's behaviour was also difficult to contain, with disputes between the father and R, and there were episodes when the attendance of the Police was required.
9. The parents' sexual relationship has featured in their written statements. The mother has made serious allegations against the father of coerced troilism involving a third party, and also the husband of her sister-in-law. The father accepts that this occurred on a consensual basis in relation to the third party only, but not in the case of the familial party who has been identified. No finding has been made with regard to that latter allegation.
10. K was born in August 2014, and between August 2014 and March 2015, he was the subject of seven episodes of hospital admission, following reported symptoms of fitting/seizures.
11. Eventually Dr Cameron, a Paediatrician, alerted the protective agencies to a possible case of fabricated or induced illness (FII), and Care Proceedings were initiated in April 2015. An Interim Care Order was granted from 23^rd April 2015, and K was removed from parental care, ultimately to foster care following the termination of a familial placement.
12. The parents have maintained regular parental contact. The two older children are not subject to proceedings, and there is no suggestion that they have historically been the subject of FII.
13. R's insulin compliance/management has been poor, and for that his parents must accept their share of responsibility. They were, after all, the responsible adults.
14. It is a noteworthy feature of the medical chronology, which details the occasions of K's hospital presentations and admissions, that this often occurred in parallel with other occasions when R was also admitted/treated because of poor compliance with his medication, with consequential impairment of his health.
15. Following the commencement of the proceedings, the application was timetabled and scheduled for this Final Hearing in October 2015, to deal with issues of both threshold and outcome.

The threshold findings

16. For the reasons I explained at the outset of this hearing in a separate judgment, the Threshold Document sets out those features of the precipitating events giving rise to this application. More particularly:

(i) the FII; and

(ii) domestic violence/acrimony.

17. Briefly I need to make reference to FII and its significance. FII involves a spectrum of behaviour as set out in the Royal College of Paediatrics and Child Health Practical Guide to FII for Paediatricians, which was reissued in October 2012. The term denotes those cases (as identified in paragraph 2.2):

"Where a carer actively promotes the sick role by exaggeration, non-treatment of real problems, fabrication (lying) or falsification of signs and/or induction of illness. In severe cases some of the behaviours by a carer which may result in harm include:

(i) deliberately inducing symptoms of administering medication or other substances (this includes non-accidental poisoning) or by intentional suffocation;

(ii) interfering with treatment by overdosing, not administering medication or interfering with medical equipment such as infusion lines;

(iii) claiming the child has symptoms which are unverifiable unless observed directly, such as pain, frequent passing of urine, vomiting or fits, resulting in unnecessary investigations and treatments;

(iv) exaggerating symptoms, again resulting in unnecessary investigations and treatments;

(v) falsifying test results and observation charts;

(vi) obtaining specialist treatments or equipment for children which are not required, alleging unfounded psychological illness in children".

18. In addition to the severest cases, which are included in category one, there are other behaviours identified in paragraph 2.3. (category two):

"There are other cases where a child may present for medical attention with unusual or puzzling symptoms, which are not attributable to any organic disease, and yet which do not involve deliberate fabrication or deception. For example, a child's carer may be over anxious, may genuinely believe that the child is ill due to misinformation, or may have mental health problems".

19. The common feature of both category one and category two cases is explained in paragraph 2.4 of the guidance:

"The common feature linking these presentations is that the carer reports symptoms or signs which initially suggests a significant disease, and yet appropriate clinical examination and investigation do not reveal any natural disease to adequately account for the child's illnesses".

20. The dangers with regard to category one and category two cases are identified clearly in paragraph 2.4 of the guidance:

"Whether the carer is deliberately fabricating a child's illness, genuinely believes the child to be ill when he/she is not, or is unduly anxious, the harm caused to the child can be significant and may include:

(i) frequent and invasive medical investigations;

(ii) unnecessary treatments;

(iii) missed education and social isolation;

(iv) limitation in daily life and the adoption of a sick role or lifestyle as a disabled person;

(v) characterisation as being disabled through the receipt of disability benefits or special educational provision; and

(vi) the child becoming anxious or confused about their state of health and abilities".

21. Let me be clear; the mother's concessions make this a category one case, with fabrication/exaggeration of symptoms resulting in unnecessary treatment. The risk to K's health by unwarranted prescription and administration of anti-epileptic medication was significant. If this situation had proceeded undetected, the physical injury/harm resulting might well have been catastrophic. The seriousness of the threshold should not be underestimated, either by the family or the Local Authority.
22. This has implications for the mother's ability to offer safe care for K, and the arrangements for the mother's future contact with K (which I believe is fully appreciated by the mother herself), by the maternal grandparents, by the father and by the Local Authority. The mother's complicated personality mix, as identified by Professor Mortimer, and the extremely guarded prognosis offered by her, requires considerable vigilance when assessing relaxation of contact conditions, or any future Reunification Plan.
23. It is this critical safety aspect for a child so young and vulnerable which requires local authority intervention and future involvement in this case.
24. Before I can make a Care Order I must be satisfied that the threshold of significant harm has been established on a balance of probability, pursuant to section 31(2) Children Act 1989. Those findings have been made by me in relation to the Threshold Document, for the reasons I have already outlined.

The Local Authority's Final Care Plan and the position of the parties

25. The Local Authority, in its Final Care Plan, proposes a placement of K with the maternal grandparents (who live I believe in A). The maternal grandparents would be familial carers, and the Local Authority have now approved them as foster carers under a Final Care Order.
26. K's safety requires such a safety net which would allow the Local Authority to intervene, and more dramatically to remove K if that were merited by any conduct which placed K at risk of further harm.
27. At the outset of this case, the mother accepted the Local Authority's Plan. The father also accepted the Plan. His employment commitments (amongst many considerations) drew him to this conclusion, although the Guardian and the Local Authority are correct also, to identify in his case the history of domestic violence, and allegations of alcohol misuse as being other features which are worthy of consideration (see paragraph 3.12 of the Guardian's Final Report).
28. The maternal grandparents, who were given permission by me to join in these proceedings to pursue an application under section 8 Children Act 1989, were also in full agreement with the Local Authority's Final Care Plan, and they are a key ingredient to the success of that Plan.
29. The Guardian, for her part, signalled her approval in her Final Report dated 5^th October 2015.
30. There was another candidate for familial care, initially favoured by the father, whether as a sole or joint carer with himself; that was his sister, Mrs S and her husband. They had initially been ruled out as foster carers by the Local Authority, but were part of the father's case as his witnesses.
33. At the outset of this hearing I invited Miss S into Court to inform her of her options and the salient facts of this case. She could, if she wished, apply for permission to make a section 8 application. She asked me about the likely costs involved, and she asked for a chance to discuss matters with her husband. She was afforded such an opportunity by me, and the Local Authority's final approval of the maternal grandparents as foster carers being delayed, the case was adjourned to the second day of the hearing.
34. The Court has been informed that no such application is being pursued on behalf of the Ss.
35. By the close of hearing in the first week, many of the very contentious issues in this case had been resolved, however, there was an element of confusion around the Local Authority's final position. Whilst it was always appreciated that foster care approval of the maternal grandparents would be obtained during the course of this hearing, that was perceived as being a decision ancillary to the approval of the Final Care Plan. It came, therefore, as some surprise to me to be informed that the Agency Decision Maker/Panel of the Local Authority was still giving consideration to the position of the paternal aunt, Miss S.
36. I have no idea how this unresolved position was allowed to continue until the opening of this Final Hearing, but any change in the Local Authority's Final Care Plan would have required notification to be given to all those involved in this case, and potentially to a wholesale rearrangement of the final documentation for this hearing.
37. I was assured by the Local Authority's counsel that by 15^th October 2015, the appropriate approval would have been obtained with regard to the maternal grandparents' status as foster carers, so that the Local Authority's Final Care Plan could indeed be implemented. And that is, happily, the position which confronts the Court today.
38. Approval was finally given on 13^th October 2015, by the Agency Decision Maker, and the Local Authority's Final Care Plan, therefore, represents currently the only "realistic" option for K's care.
39. True it is that the Local Authority's Care Plan mentions the prospect of a possible future rehabilitation of K with his parents. The prognosis given with regard to the mother's return to a more normal pattern of behaviour and presentation is guarded as I have mentioned already. The father's circumstances also need to be improved. I cannot foresee what may occur in that regard in the future. The mother still has the care of R, who is extremely demanding, and she also has the care of L.
40. The Court need only be satisfied that the Local Authority's Final Care Plan presents "a reasonably clear picture of the likely way ahead for the child in the foreseeable future" (see Re S [2002] 1 FLR 815, a decision of the House of Lords). This current Final Care Plan does satisfy that test.

The legal provisions to be applied

41. Having found the threshold to be established, the Court has jurisdiction to make a Final Care Order. K's welfare is paramount, and I have to consider the 'welfare checklist' provisions under section 1(3) Children Act 1989, where they are relevant.
42. The Care Plan has to be a proportionate and a necessary response to K's safety requirements and overall welfare. In this case, long-term placement outside the birth family by way of adoption is not proposed. Long-term foster care by familial carers is the current option.
43. The decided case law indicates firstly, that where there is only one "realistic" option for the Court to consider, the approach identified in the case of Re R [2015] 1 FLR 715 by the Court of Appeal is the appropriate one. I refer to paragraph 62 of the President's judgment:

"The task for the court in such a case will simply be to satisfy itself that the one realistic option is indeed in the child's best interests".

44. Where there are two or more options, then the approach identified in Re Y [2015] 2 FLR 615 is appropriate:

"The process of deductive reasoning involves the identification of whether there are realistic options to be compared. If there are, a welfare evaluation is required. That is an exercise which compares the benefits and detriments of each realistic option, one against the other, by reference to the section 1(3) welfare factors. The court identifies the option that is in the best interests of the children and then undertakes a proportionality evaluation to ask itself the question whether the interference in family life involved by that best interests option is justified."

45. It seems to me that in this case the parties accept that there is but one "realistic" option, and accordingly the Court must be satisfied that this option accords with K's best interests.
46. The maternal grandparents have been assessed as having the capability to care for K safely. In conjunction with the Local Authority they will have the responsibility of managing and supervising the mother's contact.
47. There is provision also for paternal contact in the Final Care Plan, and inter-sibling contact as well. This will also probably require the management and the intervention of the Local Authority as an intermediary between the father and the maternal grandparents, and between the competing needs of the siblings as necessary. The Guardian identifies this as being a feature at paragraph 3.19 of her report.
48. It is possible that at some future point, either the mother or the father may apply for discharge of the Care Order. That application would be considered on its merits at that time. Professor Mortimer accepted that the mother's complex psychological presentation made it essential that therapeutic improvement was required in the mother's case, and I believe also that K's own protective abilities will need to be enhanced before the mother can make such an application. The mother's circumstances with R and L, probably, will also require careful evaluation.
49. It is obvious that the longer K lives with the maternal grandparents the more settled he is likely to be, and the greater will be the mutual attachment between them. Any change in circumstances will therefore have to be considered very carefully, and I say no more about future applications than that.
50. I am not required in these circumstances to consider K's welfare throughout his life. I must consider his infancy, his childhood and his pre-adult circumstances for the foreseeable future.
51. The parties, as I have indicated, are agreed or accept the Local Authority's Final Care Plan. The Guardian recommends in paragraph 6.1 of her report that I should approve that Plan and make a Final Care Order.
52. I am satisfied under section 31(3A) Children Act 1989, of the placement provisions, and under section 34(11) Children Act 1989, I have considered the contact arrangements and considered the comments of the parties with regard to those arrangements. Contact Plans would be subject to periodic statutory review, and will unavoidably develop over time.
53. The transition from foster care to familial care is set out in the Care Plan. That will be implemented with effect from next week, and there is provision for review of the generality of arrangements early in 2016.
54. I do not believe it is necessary or appropriate in this case to make any defined Order with regard to contact provision. The threshold having been established, I approve the Local Authority's Final Care Plan and I make a Final Care Order in K's case.

End of judgment