B e f o r e :
Her Honour Judge Lynn Roberts
(sitting as a Circuit Judge)
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Between:
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X County Council
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Applicant
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- and -
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The Mother -and- The Father -and- The Child by his Children's Guardian
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1st Respondent
2nd Respondent
3rd Respondent
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Transcribed from the Official Tape Recording by
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Counsel for the Local Authority: MS MACLYNN
Counsel for the Mother: MR FLETCHER
Counsel for the Father: MR DAY
Counsel for the Guardian: MR ALI
Hearing dates: 16-20 February 2015
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HTML VERSION OF JUDGMENT
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THE JUDGE:
- This is the hearing of the application of Essex County Council for a care order in respect of a child whom I will call James, but this is not his real name.
- James has just had his 16th birthday. He is the son of M and F as I shall call his parents.. Essex County Council who bring the case are represented by Ms MacLynn; M by Mr Fletcher; F by Mr Day; and James by Mr Ali, who is instructed by James' guardian Dorette Holder. As I said yesterday, the standard of advocacy has been of a very high standard which has greatly assisted me and helped me bring this difficult case to a conclusion today.
- I have read statements from the social worker and from both parents and reports by the guardian. I have read reports prepared for this hearing from Dr Bellman and Gretchen Precey, an ISW, and I have read many reports and notes which have been written prior to the proceedings in the normal course of events as well as those which were written once the Local Authority became involved in James' life since August 2013. I have heard oral evidence from the social worker Julie Hartnell, from the ISW, from Dr Bellman, from Dr Teo, from the parents and from the guardian.
- The position of the parties is that the Local Authority seek a care order and plan for James to remain in the care of his current foster carers with his parents being able to spend much of the day with him once a fortnight. The parents contest the threshold criteria, not conceding that the court can make a care order. They oppose the making of a care order in any event and seek James' return to their care. The guardian supports the Local Authority.
- This is an unusual case in many ways. James is much older than the usual child involved in care proceedings. The issues we have grappled with in this hearing are also somewhat different from the usual ones. James is the only child of M and F and, sadly, was born with profound disabilities. Although it was noted at his birth that there were abnormalities, as James has grown, the extent of his disabilities has become clearer and it is probably fair to say that in the innumerable appointments which his parents took him to in his early years, the news was rarely, if ever, good. There is nobody in this room, there is nobody who has been involved in this case, who has not got the deepest sympathy not only for James but for each of his parents. I am also well aware of the huge demands having a child with James' disabilities puts on the parents. His parents also emphasised to me the joy he brings.
- As will be clear in this judgment, I find that over the last ten years and, in particular, over the last four and a half, the parents have not provided James with all that he has needed, have caused him significant harm and to be at risk of suffering significant harm but I do not for one moment consider that either parent has ever intended to do so. None of us know, unless we have been in a similar position, how we would react to the challenges which M and F have faced every day. My role is only to establish the facts and then determine what will meet James' welfare needs going forward.
- James was home-educated from the end of primary school in July 2010. In July 2013, the home education officer made a referral to Children and Young People's Services and it is worth quoting what she said:
"Roma states James has global developmental delay, severe and complex needs, lacking hearing, sight and speech impairment and a wheelchair user most of the time. He is unable to walk unaided. Whenever Roma has seen him walk, it is with holding hands with his mother or father. Roma has been involved with James for three years, endeavouring to home tutor him. However, little or no progress has been made due to his condition. The parents are very private. James stays in the home. No relatives visit him. He has no friends. The only outside activity is when the parents take him on a cruise with him. Everything is about the parents. They do not discuss what James needs. They will only talk about themselves, their work and what the next cruise will be. There does not appear to be anything placed for James. James has access to a sensory room at one time, she believes in a special school, and he really likes this. However, parents removed him some years ago and, since then, has not been able to access anything which may be of help to him."
For completeness, I should say at the end:
"The referrer wants it noted that she does not believe this is a child protection issue and, as she is the only professional involved, wants the family to know that this is about support for the family and James ."
Apart from her view that it was not a child protection matter, in my view, she identified many of the key issues.
- Miss Hartnell got involved and tried to work with the parents. By the end of January 2014, she had persuaded the parents to let James attend School Z, a local special school, where he immediately began to thrive. However, the benefits of attending this school could not be built on whilst he remained living at home because the parents were not working with the school and had not changed how they managed life for James at home or, indeed, the home conditions.
- In April, Miss Hartnell managed to persuade the parents to agree to accommodate James and James moved to live with [the foster family] who shall be known as "Rs" for the transcript, where he has remained. He moved schools to attend a special school local to where they live. Proceedings were started in September 2014.
- I do not criticise the Local Authority on this occasion for not having issued proceedings earlier following James' accommodation. For a child of this age and with his needs, it was right to expect the parents, who were interested at this stage with a residential school for James, to come to accept the arrangements whereby James lived in foster care but had contact with them. F made it clear he did not want there to be proceedings. Proceedings had to be issued when the parents wished to withdraw their agreement to section 20 accommodation.
- During the proceedings, there have been comprehensive assessments, not only by the social worker but by the independent social worker Gretchen Precey and Dr Bellman, a consultant paediatrician, has reviewed all the medical notes and reported and I also have the expert assessment of the guardian.
- The issues I have to decide are: are the threshold criteria met; if so, should James return to live with his parents under an order or otherwise; or should he remain living with his foster carers under a care order; and what is the right level of contact? I have to apply section 31 of the Children Act and I have to decide if the Local Authority have proven their case on threshold. The burden of proof is on them on the balance of probabilities.
- If I find that the threshold is met, I then have to consider all the evidence in the light of section 1 of the Children Act. It is James' welfare which is my paramount concern. The checklist in section 1 is always an essential guide for considering what best will meet this boy's future needs. I must take into account case law which reminds me that a child should be enabled to live with his family if that is possible and I agree that the law is as Hedley J, as he then was, set out in his characteristically wise way, which is that I should not make a care order because I consider the foster carers will do a better job if I find that the parents could provide good enough care.
- Turning to the threshold document, first I should say this. At the start of the trial, counsel Ms MacLynn, who had just stepped into the case as the originally instructed counsel had been taken ill, sought to amend the threshold document. I refused that application as the Local Authority had made it clear at the very recent IRH that they were not seeking to amend the threshold documents and the parents had proceeded on that basis. At the IRH, I encouraged the parents to think again about contesting the threshold aspect of the case because it appeared to me, and I believe I have case managed the case throughout, that the real issues were about the outcome of the case and I feel that more strongly now. The evidence in support of the findings sought by the Local Authority was always very strong. The parents under Ms MacLynn's careful and persistent cross-examination conceded some things, F perhaps slightly more, but the threshold remained contested. The parents' inability to concede the threshold is an important factor in my deliberations about the outcome. In short, the parents' inability to recognise what has gone wrong in the past is a relevant consideration in my deliberation as to how they are likely to behave in the future.
- I also unfortunately have to say something at this point about credibility. These parents, I am sure, wish to be truthful. However, I have formed the clear view that they have given a false impression of how things have been with James to many professionals for many years and have continued to do the same in their statements to the court. I do not know why. I do not know how much that has been motivated by wishful thinking, by wanting things to be so, and how much it has been so that people will leave them all alone. It is also the case that the parents may well believe much of what they say. An example when M was cross-examined, this exchange took place. She was referred to her statement where she said that he was attending three hospitals and seeing Dr Amadi between 2003 and 2013. It was put to M that this was not true. M said, "He was. He must have been seen." The question then came:
"But we know he was not. He has not been seen by a doctor, apart from the GP, since 2007 at the Royal National. After that, there was only physiotherapy and occupational therapy and the GP. He did not see Dr Amadi. You give the impression all these services are ongoing and this is not true."
M said:
"You can't make an appointment. I was under the impression that I was being seen by these people."
She was asked if she was misleading the court and she said:
"I am unsure how to answer that. I am sure I was under these appointments at this time."
This same approach runs through all the documents and the oral evidence.
- In his oral evidence, F was able to acknowledge some matters which the evidence had shown clearly that he and his wife were wrong about and after he had seen his wife effectively cross-examined by Ms MacLynn and Mr Ali. For example, he was able to accept the failure to take James to appointments and to seek other appointments for him but he was not able to see that that had been harmful or potentially harmful for him. He was still, as was his wife, wholly unwilling or unable to see the progress James had made over the last year, progress which shines out from all the professional witnesses and the documents.
- As Ms MacLynn said in closing, it is a difficulty in this case that the professionals have, for many years, relied on what the parents have told them as to what James can do and cannot do and, indeed, does do. Sadly, the evidence I have read and heard has brought me to the conclusion that the parents have not consistently given accurate accounts of this. There are innumerable examples, one being to claim that James has a vocabulary of 50 words when it is quite clear that he has no words at all and I find, sadly, on the balance of probabilities never had. This is relevant for three reasons: first, because it appears to set up a baseline for James which is inaccurate and means that he may have been deprived of assistance he would otherwise have been given; secondly, because it shows that the parents are unable to work properly with professionals; and, thirdly, because it has distorted the evidence.
- The quality of the professional evidence has been high and I have no reason to doubt it. I find no reason why the social worker, Dr Teo, Miss Precey or the guardian would lie to me and I find that they have not and I also reject the suggestion that the foster carers have lied about anything in order to make themselves look good. I do conclude that the professionals and the foster carers now involved are behaving as they should be and that I can rely on their evidence. It is not difficult, therefore, for me to conclude that where the evidence is in conflict, where what the parents say differs from what the other witnesses or, indeed, the weight of the documents say, I prefer the evidence of the other witnesses and the documentary evidence.
- I now turn to look at the detailed threshold document which we have been working from. The Local Authority say that James is suffering or is likely to suffer significant harm and that the harm or likelihood of harm is because James is not receiving care that would be reasonably expected from a parent and then they set out the various paragraphs. I am going to start with paragraph 8, which says the home conditions are not appropriate for James' needs and have been found to be unhygienic. It is agreed by all that I am assessing the threshold document as things were on 3rd April 2014 when James was accommodated. It is, of course, correct that it is proper for me to look to events either side of that date and not be rigid.
- Paragraph 8, the evidence of the social worker is that when she first went to the home, and I remind myself that the parents had refused entry to their home to all professionals, even those involved in James' home education and therapies for many years, the stench of urine was overwhelming. I find the social worker is telling the truth. The parents have denied this but I am satisfied it is so. It is possible that the parents were so used to the smell they did not notice it. The parents have tried to argue that the smell only started after the social worker came to visit and it was their distress at her visits which made James distressed and to begin to be incontinent. The evidence is against this.
- It is agreed that James has occasional accidents in the daytime but it is apparent now that his main difficulties are at night. The foster carers immediately found that he could not go through the night. They have dealt with this by providing him with pads during the night and this makes him more comfortable, means that he and everyone else sleeps better and prevents a build-up of urine in his mattress or linen or, indeed, carpet.
- The parents' failure to deal with the incontinence was neglectful and was causing James significant harm. His bedroom was the main source of the smell and it was not a healthy or pleasant environment for a child to inhabit and it is probable in my judgment that he was frequently uncomfortable and did not sleep as well as he could.
- The other main aspect of this paragraph is that the parents, for their own personal reasons, had collected or inherited huge amounts of belongings which had taken over their home. This meant that James had very little space in which to move around and that, with his mobility difficulties, his ability to move around was greatly inhibited. This ties in with James crawling instead of walking which I will deal with separately. He also had very little space in which to play. I bear in mind that the evidence shows that this was a child who, from July 2010, when he stopped going to school, rarely went out during the weekdays when his father was at work. I am satisfied, from that point, when his mother ceased driving and rarely ventured out with James during the days, James spent most of his life in the very cramped and unhygienic conditions which have been described, mainly confined to a small space on the floor. The parents are unable to concede that this was harmful even now but it was.
- During the eight months of Miss Hartnell's involvement prior to James' accommodation, the parents did not address this problem, despite the social worker's encouragement and explanations. It is only since James' removal that they have started to do so. The smell of urine has gone but the guardian still detected it when she visited in October 2014. As Miss Precey has told me, however, the clutter remains. It has just been moved around. The stairs have recently been carpeted, another concern as bare stairs were more dangerous for James, but the photos the parents have shown me have not impressed me. There is still much too much stuff around, much of which could prove hazardous to a young man trying to walk unaided around the house.
- It is of great concern to me that it is possible for a child who is home-educated not to be seen in his home environment. It cannot be right and I shall want those responsible for home education locally to consider this and this judgment must be disclosed to the Educatiion Department. It cannot be right that a school-educated child has his school premises inspected but that a home-educated child does not have his home inspected. As this case shows, such a child can be being educated in a harmful environment and the State neither knows nor acts for years. It must be, in my judgment, incumbent on the Home Education Service to visit and assess a child in his home environment.
- Paragraph 7, the allegation is that the parents have caused James to become socially isolated. I am completely satisfied that this paragraph is made out. From the time James left primary school in July 2010, he became increasingly socially isolated and this appears to have been at its worst in the last two to three years before he went into foster care. His parents say that he mixed with their adult friends - I am far from convinced that there was much of that - and that he swam and went riding. However, the evidence shows, and the parents had to concede, that there was probably no swimming in 2012 and maybe one swimming outing in 2013, none in 2014 and no riding since January 2013 until he went into foster care. I have no evidence that James mixed with other children at all since he left school.
- The parents did take him out and about in this country and abroad to historical buildings and to concerts for example. Miss Precey said:
"I do not think it is wrong to take him out to stately homes etc but I am not sure how much he benefits from that. They do this now at the exclusion of having him at home. When I came to observe contact, which was after six weeks of unsupervised contact, I find they always take him out. They never take him home."
I agree with Miss Precey that such trips do not meet his needs for social interaction. They were, of course, not harmful and I am sure he got some pleasure from them.
- Dr Bellman was asked about the importance to James' development of mixing with his peers, children of his own age and children of his developmental age, and he said:
"Children like James always gain a lot from being with their peers. They see other children's actions. Some can interact. Some can be involved. They can be involved in some communication. By hearing and seeing how other children are behaving and responding, it is of great benefit to them."
- James was deprived of this for three and a half years and he was harmed by it. The parents were reluctant to allow him to start at School Z and did not cooperate fully in getting him there. They needed a family support worker for some weeks to get him there. In the few weeks when James was attending school from home, M suggested he was being drugged and then the parents did a distressing video of him to suggest that he was unhappy at school.
- Although the parents have this week given evidence that they are happy with the current school, I find it is likely that if James was at home, he would not be maintained at school because I find that the parents are not committed sufficiently to him attending school and the mother, in particular, would prefer him at home. She would be the person who had to get him to and from school and it is not clear that he could stay at his current school if he returned home. If he had to go back to School Z, I am not at all confident that the parents would keep him there. Until very recently, the parents wanted him to attend a residential school which the professionals are all clear that he does not need and would not be of benefit to him and both parents seem to retain some hostility towards School Z. If James was withdrawn from school, he would suffer further significant harm.
- The social worker says in her final statement:
"He is a popular member of the class. Although academic progress is slow, the class teacher is clear that James benefits greatly from attendance at the school. James particularly enjoys the sensory facilities within the school but also takes an active part in all physical activities, particularly swimming."
It is hard to read that paragraph without recognising the loss to James of being deprived of attending a school for the last three and a half years.
- Paragraph 5, the allegation is Dr Teo, a consultant at the Children Development Centre has reported that James' stoop may be worse due to his neglect by the parents. He does not have the appropriate equipment required and the parents have missed several appointments.
- In 2011, the physiotherapist and occupational therapist wrote:
"Parents to ensure that James has the opportunity to do the same level of physical activity that he did in school in order to maintain and progress his development. Crawling should be discouraged as it is not an age appropriate activity and can lead to damage to the knees and cause muscle shortening if done on a prolonged basis. He should be encouraged to cruise around indoors and to walk either with a walker or with hands held outside. He also needs to be encouraged to keep walking for a distance as his endurance has already deteriorated since leaving school."
The evidence is then overwhelming that, from that time on, when James was at home, he mainly crawled. That is what the parents themselves reported to various professionals. At the review I have just quoted from it is reported by the parents:
"At home, James chooses to crawl round rather than walk."
It was reported to Dr Teo in November 2013 and that is what the social worker herself saw when she visited. I accept that the foster carers found his skin had calluses on his hands and knees as a result of crawling even if Dr Teo did not record that. I find that because Dr Teo had many more urgent and serious matters to consider in her examination, I find no reason for the foster carers to lie and, in any event, the guardian herself saw the fading calluses many months later in October 2014.
- Dr Teo says:
James' current physical and communication needs are not being met by the provision that parents have described. His kyphoscoliosis has developed between 2011 and 2013 according to my current information. It is possible that his crawling and his visual habit have contributed to his kyphoscoliosis."
She said at a later date:
James' knee and back posture are likely to be related to his lack of walking, habitual posture and may also be related to lack of effective therapy input over many years. It is a positive sign that his kyphoscoliosis appears to be improving based on my previous assessment of him in November."
Dr Bellman agreed with Dr Teo as to the likely cause of the stoop deteriorating.
- The Local Authority ask me to conclude that whereas it is not possible to determine the cause of the kyphoscoliosis, the deterioration is the result of parenting and the improvements result from the care given since. I do find that. I agree with the doctors. It is also clear that in June 2011, and I quote from the physiotherapist, "His spine was straight." Secondly, the parents were advised, as I have quoted, to ensure that James walked, not crawled, at home and that clearly did not happen. Thirdly, the evidence is that in August 2012, the parents were advised by the physiotherapist to seek a referral via the GP to a spinal surgeon because the problem had started to develop. The response was that they would not be able to attend an appointment until after Christmas because so much was going on. They did not pursue an appointment at all and it only came about when the social worker became involved. The reason given, the parents attribute this to concern about F's own health, he had found a lump which they feared was serious but turned out to be a hernia for which he needed surgery, I find most unimpressive and perhaps the low point of the parents' case. As Ms MacLynn pointed out, at a time when the parents were enjoying lengthy and frequent holidays, albeit with James, and outings, they felt unable to arrange an appointment for James to see the GP and to ask for a referral to an orthopaedic surgeon because there was so much going on. This was serious neglect.
- In April 2013, James was seen again by the occupational therapist and physiotherapist and the advice repeated:
"James has a home exercise programme to try to prevent his kyphosis deteriorating which parents are happy with. It has been recommended that parents arrange an appointment with the GP practice to discuss referral to orthopaedics for advice on management of kyphosis."
Nothing happened. I note at the first child protection conference it was said:
"The chair of conference read from the physiotherapist's report that James would be taken to the GP in order that a referral to an orthopaedic consultant could be made but this had not happened. M and F claimed that they were unaware of this recommendation."
That was not true. I also make the findings sought because the evidence is overwhelming that his posture and walking and knee condition have now improved. The improvement did begin when he was still at home but I find on the balance of probabilities that that was because he was also attending school from the end of January 2014, which meant that he was encouraged to walk during the days, to stand and sit and do physical activity. At home the evidence is that he continued to crawl right up until his removal, despite, by that time, the parents' understanding of the importance of him walking, not crawling.
- The improvements have continued. Dr Teo saw him just before Christmas and she told me his walking skills had improved. He was walking with one hand held. When he wanted to leave, only one person had to go with him. His posture was also improved. He was standing and walking in a more upright position.
- The parents rely on a report from Addenbrooke's where James was seen by a consultant paediatric orthopaedic surgeon in March 2014. He said:
"Examination reveals a marked, quite rigid kyphosis. There was only a minimal scoliosis."
He then says:
" James is 15 years 1 month of age. I explained to James' parents that, unfortunately, it is likely that his spinal deformity will progress."
The parents rely on that, I think, to say that his condition has not improved. I am much more concerned with how James' kyphoscoliosis has improved rather than the opinion of the surgeon as to the likelihood of it improving. I find as a fact that his posture and mobility has improved considerably since November 2013 and that this has been particularly marked since February 2014. Based on what Dr Tio told me, I presume that James is in less pain as well because she explained to me, as I expected, that the muscular reaction to the condition would cause him pain. There is no doubt that allowing the kyphoscoliosis to progress and not to seek medical help to deal with it caused James significant harm. Dr Bellman said in his report:
"There are indications that James'management at home was unsatisfactory."
- I do not have confidence, as I shall return to, that the parents will cooperate with professionals and will engage with services if James was returned to live with them. Dr Bellman said:
"It is crucial for James' ongoing care that his carers engage fully with professional advice. He must have the benefit of continuous regular monitoring and treatment from the above specialists i.e. developmental community paediatrician, physiotherapist, occupational therapist, speech and language therapist and CAMHS team as appropriate. It is also important that James' carers are constantly in touch with school so that they can exchange information and modify strategies and necessary at school and at home. Failure to engage with services puts James at risk of developing further problems such as poor motor skills and deterioration in mobility, increasing spinal deformity and failure to improve optimally with communication, social and self-help skills. These are likely to have consequences for his emotional and behavioural development and increase the likelihood of mental health disorders."
- Paragraph 6 says:
"The parents do not recognise the child's health needs and have not followed professional medical advice."
I find this paragraph proven. Some of the same points as I have just made under paragraph 5 apply here too, such as the attitude to his need to walk and not crawl, the failure to go to their GP and get a referral to the orthopaedic specialist, the failure to keep him active in recent years. This advice was essential to his physical health, not just his socialising. I have already referred to the evidence which shows that the swimming and riding had virtually ceased by the end of 2011. I have dealt with the evidence that the parents were advised that he should not crawl and the evidence that they failed to get him referred on. There is also evidence that his need to attend for regular vision and hearing checks was not addressed and that he did not wear his glasses or his hearing aids going back to 2008.
- There has been a great deal of evidence heard in this hearing about their failure to take him to medical appointments but I have already indicated and the Local Authority do not disagree that there is insufficient evidence to support a finding as set out in paragraph 3 and I do not find that paragraph proven. However, whilst dealing with paragraph 6, as I am doing, it is the case that the parents have failed to be proactive and to seek out the medical help which their son has needed. The NHS has clearly failed him. There are countless letters written to or copied to his GP or to the CDC but from about 2006 to 2013 it appears that these letters were not read or were read and not acted on. Mr Whiting has carried out a serious incident enquiry into these matters and they are not matters for me. However, I am quite clear that the failure of the NHS to take control does not absolve his parents from the responsibility of seeking out the help he needed.
- As Dr Bellman says, there appears to have been no further engagement until 2013 when a child protection conference noted that James was not receiving regular medical reviews and that services had ceased. It appears, therefore, that James was deprived for a period of six or seven years of regular input from health professionals and Dr Bellman said to me:
"From 2010, I agree things were unsatisfactory for James at home. I agree he suffered harm and was at risk of suffering harm. He did not have access to the resources which should have been available to him."
- Dr Bellman went on to explain that the way NHS services are delivered means that therapists, such as the OT, the speech therapist, the physiotherapist, often decide where they do not get proper parental engagement to discharge the child. If a paediatrician had been involved, he explained, they may be able to explain to the parents what is needed and get them to work with and engage with the professionals. It is very much a team effort. Dr Bellman said:
"In my opinion, he would have benefited from ongoing therapy. It is a partnership, however, and if the partnership is not working, the child may suffer harm and it needs a community paediatrician to coordinate the care."
- The evidence is that the parents were always keen to have James discharged from any medical or therapeutic help which he was under. The refusal to allow people to see him in the home had its consequences. It was recorded in 2011 by the speech therapy people:
"F explained that family don't want professionals coming to the home. Speech therapy explained that it may not be possible to support James successfully outside of his familiar home environment and that following the initial appointment at the CDC, it may be inappropriate to offer further appointments."
- With regard to the absence of a community paediatrician from James' care, they both say that they thought it was odd and tried to pursue this but also that they presumed that the NHS knew what it was doing. The result is, as Dr Bellman has written and said, he did not get the help he needed and Dr Bellman has said and I have already quoted what the danger is to James if the same happened in the future.
- I do not accept that the parents' care of James was sufficient in this regard. These are intelligent people with some experience of working with people with mental health problems. F holds down a responsible job. A reasonable parent with their abilities would have questioned the lack of medical input or oversight and done something about it. There is no evidence that the parents even discussed with the GP the lack of any medical oversight or input. There is a record in Mr Whiting's report which I think, but I cannot be sure, may be a direct quote from what the parents said to him but it may come from another record:
"James' parents were fully aware that he has not been seen by a paediatrician either locally or at Great Ormond Street. When asked about this lack of follow-up, his mother responded, 'We feel that James is doing as well as can be expected given his complex needs. We can go to the GP if we need to but we haven't seen the paediatricians for a very long time but we didn't think he needed to'."
- Paragraph 4 of the threshold document is not being pursued. I turn to paragraphs 1 and 2 which say:
"(1) The child is experiencing serious neglect in the care of his parents.
(2) The parents are not able to meet James' complex needs."
These paragraphs are proven and, again, there is copious evidence of this. Dr Bellman gave clear evidence which I have already referred to. The clearest evidence, perhaps, is what we know of how well James is doing now after a year of attending school and ten months of living in foster care.
- Miss Hartnell was asked about this and said to me:
"His improvement in foster care is significant. It is remarkable. His posture, his mobility is better and more relaxed."
She was asked, "M says he has regressed" and she said:
"I can only see improvements. At home he is always on the floor or sitting on the sofa. To move around, he always crawled and found stairs difficult. Now he is not on the floor. He goes upstairs holding the handrail. The foster carers walk behind him but he can do it. He can sit and concentrate for longer times. He can now put Duplo bricks together. He can walk from the toilet door to the breakfast bar without any aids if someone walks behind him. As for his behaviour, he does not react as I saw the first time when he upturned all the furniture and was desperate to get out, pulling on clothes and hair. All this behaviour has significantly reduced."
- I have already referred to the improvements noted by Dr Teo in December 2014. The guardian saw him in October 2014 and, again in February 2015 and she said:
"I was able to observe his ability to do various tasks and there was a distinct improvement in his posture, in his ability to walk, in doing puzzles. I spoke to the foster carers and they have seen a dramatic change and they gave a breakdown of how he was when he arrived and the changes that have taken place."
- We also know how well he is doing at school. At his most recent assessment, it was reported:
"James attends School Y and has made progress in this setting in regards to mixing with other young people and taking part in the activities offered within the curriculum. James has taken part in cooking, PE and enjoys using his rollator in the school playground."
- I should also refer to what is reported about how he is doing in the foster home. He is beginning to learn what is acceptable behaviour. For example, his hair pulling has reduced significantly. He adjusts his noises to the situation. James laughs often and likes to have fun and many things will make him chuckle."
- The parents say he was doing much of what he is now able to do when he lived at home but that he regressed when the social worker started to visit and then when he was removed from home. I do not believe this. It seems to me much less likely than that James has regressed since he has stopped attending school and that when he was attending school and getting what Miss Precey has described as "structured and predictable environment which helps James feel secure and relaxed," he thrived.
- I have to bear in mind, as I referred to at the start, that the evidence is strong that the parents have exaggerated his abilities to various professionals. They say he can write his name and has a vocabulary of 50 words to give two examples. On many occasions, this has been accepted on face value by professionals, which, no doubt, has affected their approach. Of course, one sympathises with the parents who wish that James could do more and I accept that it is possible that they can interpret the noises he makes better than other people but I cannot rely on their account of what James can and cannot do because the weight of the evidence is against what they have said he can do.
- It is a great concern of mine that professionals who have had responsibility for James' therapeutic needs historically have just accepted what his parents have said without testing him themselves. Dr Teo also explained that when parents do not properly engage with services such as speech therapy, the services often discharge the child, as we know has happened. For example February 2013, speech and language therapy wrote:
"F indicated that no further advice, support from speech and language therapy was required at the present time and that he was in agreement that James be discharged from the service."
- James has been the victim of both of these things to his detriment. The NHS and the parents are responsible. It appears that when James was taken out of school, the communication which had been used for him, PECS, was not adequately or properly used by his parents. They seem to have devised a different system. If he had attended school, there would have been great opportunity in this area. Miss Hartnell, however, gave evidence that he is not able now to use PECS or Makaton as they are too advanced for him but that the view of the school was that if he had been much younger, they could have been used with him. The failure to have James at school has affected his communication ability, I find, on the balance of probabilities.
- I have made it clear in this judgment that I find the decision to educate James at home to have been a very bad one. The parents say, in retrospect, it was not the right decision but they continue to try to justify it. Miss Hartnell told me that attending school is always recommended for a child with disabilities such as James, which is why there was a named school on James' educational statement. Dr Bellman said:
"He is a child with severe learning disabilities who will require a great deal of help and will not make much academic progress beyond slow increase in his independent skills possibly and his ability to communicate and play."
- It was put to him the parents have unreal expectations about his ability to improve or attain at a higher level and it was put to him that Miss Precey was worried that James could be pushed to do puzzles he could not do. Dr Bellman said:
"It depends how it is done. It is reasonable to encourage a child to do play that may be pushing them a little bit to try to get success but it is important that a child can complete what they want to and does not get frustrated by tasks they cannot do. You should not give a child an activity that the child cannot do and so fails and understands that they have failed."
- Miss Precey said:
"In school he would have had a curriculum more suited to his needs. I have seen him doing music and creativity lesson, getting very basic stimulation and using an iPad. At school M spoke of education being based around trips, watching the History Channel. This is not appropriate for him. It would have made no sense to him at all. It is not giving him any pleasure or satisfaction."
- I have to say I have no evidence to suggest that the education M gave him at home met his needs at all. I consider that his complex needs were not met by his parents during the time he was educated at home.
- I have already referred to the failure of the NHS in caring for this child. The Education Service has similarly failed him. Quite apart from education itself, Mr Whiting pointed out that James was lost to medical follow-up before secondary transfer, at which point his parents opted for home education. Had he attended School Z, his placement at the school would have been supported by a number of healthcare professionals. One of the unintended consequences of the provision of home education for children with complex medical needs is the potential that this creates for disengagement with health services, both universal and specialist services. He goes on to say:
"It would therefore seem appropriate for consideration to be given locally to how the necessary processes might be put in place to avoid such unintended consequences and to ensure that the provision of health services to individual children is based upon assessed need rather than whether or not they are attending a particular school."
That, as I say, deals with the impact on his health needs by not attending school and I have already dealt with the impact on his development.
- The Home Education Service has failed him, so far as I can see. He and his mother were seen once a year outside the home and the worker was presented with information from his parents about the work he was doing which may or may not have been correct.
- As for the annual review by the Education Service, I do not think it is worth the paper it is written on. I have seen the one in the papers dated 6th March 2013 and I am very concerned about it. It appears to me that some professionals have sat down with James and his parents and gone through the motions. The parents have again reported wrongly about what James can do, such as, on this occasion, several word sentences. It is noted that he is not using the PECS system, that he has not had up-to-date audiology or vision checks. His parents repeat that he does not want to go to school and his lack of socialisation is noted. Then it appears to me everyone goes away until the next year. The parents are not challenged in any way. James is not assessed. James is failed by his parents and by the Education Service. This is a disgrace in my view. It was seriously neglectful and an example of his parents not being able to meet his needs as well as a failure by the State that James has been allowed to be absent from school for so many years during which he has failed to progress and, in my judgment, gone backwards. I question whether the right of parents to opt for home education is compatible with the rights of their children in many cases, not just this one, and if this right is to continue, surely the State must do much more to establish that the child is being educated according to his or her needs and that the child is not otherwise neglected or having his or her needs unmet.
- Still dealing with the paragraphs about neglect, I have already dealt with the parents' failure to provide a suitable home environment. Quite apart from failing to manage his incontinence, Miss Precey noted:
" James is noted to enjoy freedom to move and increased mobility. This was largely impossible for him whilst living at home."
The parents continue to dispute that his mobility was affected but I find that it was. Indeed, his parents still cannot bring themselves to accept that he has made significant progress, as I have said. His father almost concedes the point but not quite and his mother cannot at all. Both say that he has lost his spark. I cannot accept that. I refer to his happiness as described in the home and in school. Nobody else sees him as the parents do.
- Of course, it is very difficult as parents to accept that one's child is being better cared for by strangers but the inability of these parents to see the changes is of significance. The parents found it very difficult to accept that anything could and should have been done differently. F started his evidence clearly having decided he needed to make such concessions but, in my view, he was unable to maintain that stance and soon took a similarly rigid position to that of his wife. I find the threshold proven and I now turn to a consideration of the way forward.
- The significance of the parental failure to acknowledge much that they have done not well in the past and to acknowledge any progress by James and, indeed, to say that he has regressed, seriously hampered their case. I have already quoted what Dr Bellman has said James needs going forward and what will happen if he does not get that. In his oral evidence, Dr Bellman expanded on it. He acknowledged that it was a great burden and said that the parents have an enormous difficulty to meet the needs. It will be very demanding and there will be multiple appointments which must be kept for James' sake. It is unfortunate that such children require so much healthcare and this can mean going to various specialists at different times despite the efforts of the NHS to coordinate. He said the parents need to be able to devote a lot of time to this and to looking after the child. He said it is vital that the child's needs are met and to do so, his parents need to engage fully with professional advice. He said there needs to be a full partnership involving health, social workers and education and they all have to work with the parents and all understand what is needed.
- He was asked if this multi-disciplinary approach could be met while a child was being home-educated. He said:
"I have some children who are home-educated and that requires extra effort by the carers to get the input of, for example, the therapists who would otherwise be on site at the special school and then to cooperate with any plan put into place."
He was asked, "And if the carers are not fully on board?"
"There will be a risk to James if he is not taken to the services that he will not get the therapy required and he would be at risk of deteriorating in many ways, as I have set out in my report. It is impossible for James to make satisfactory progress if his parents do not fully cooperate with the services offered."
- In my judgment, F and M are unlikely to cooperate fully with the services offered or to work in partnership. I make this finding with regret because when this case started some months ago, I hoped there would be a different outcome but I make this finding because of the history which I have gone through in detail with the threshold findings, because the parents do not accept that much was wrong with what they were doing, because the parents cannot accept that he has done well since he has left their care and I acknowledge that the parents may well feel that they are being sincere in telling me that they will cooperate but I do not think it at all likely that they will be able to maintain that if James returned home. Practically, they would have difficulties as F works full-time and M does not drive but if there is great determination to get round such difficulties, practical matters will not matter but I have not found such determination.
- Similarly, the parents' ability to respond in a timely fashion to the need to change those few areas which they accept do need to change is such that I do not think it is within James' timescale. For example, the house is still cluttered 18 months after it was first pointed out to them. M has only just purchased a car which is appropriate for James. How this family functioned in a Fiat 500 is hard to understand but I thought it relevant that F described it as "cocoon-like".
- The guardian said that there has been engagement by the parents but that it was limited engagement. She agreed that there have been some changes but an awful lot remains to change. She said they could have done much more but have not. Miss Precey was asked, "The parents say they have made changes and adapted. How far can they go in changing?" She said:
"They were very welcoming and cooperative but I wonder if there is a degree of disguised compliance or appeasement. I was struck by their rationale... why they wanted residential care, residential schooling for James. It was mainly so that they could get the social workers away from looking over their shoulders all the time. It was not really about James' best interests. It was more to do with wanting to be left alone."
That is a recurrent theme. The parents really want everyone to leave them and James alone.
- It is possible that the parents understood some time ago that James would not be with them for long. I do not know if that was said to them or not but that is clearly what they understood but James is here and is here to stay and it seems to me the parents have not changed their responses when that became apparent and I now do not think that they are able to. Dr Teo who was a most careful and fair witness was asked, "Do you think that they can fully cooperate?" and she said:
"It depends on whether they agree what is in James' best interests and agree what he can and what he cannot do. If they cannot accept his progress, it is perplexing."
She said, "It is usual to be pleased that other people see such progress in one's child." F and M cannot accept the progress or what is in his best interests or what he can and cannot do.
- I must decide the outcome of this case then whilst considering section 1 of the Children Act. I have discussed James' particular needs and background and the harm he has suffered and is likely to suffer from and the capability of his parents to meet his needs. As for his ascertainable wishes, the evidence is that he is well attached to his parents and he loves them and he enjoys his time with them but I also know that he is happy and thriving in his foster placement and at school. If his circumstances were to change now and he was to return to the care of his parents, I have found that it is likely his needs would not be met and that he would suffer further significant harm. The conclusion of the ISW with which the guardian agrees is that James' needs are best met by remaining in foster care at his current placement and attending his current school. I go further. I find that James' needs will only be met if he remains in foster care and continues to attend his current school or an equivalent.
- In all the circumstances, I find that F and M are sadly not able to meet James' needs. It is James' welfare which is my paramount concern and I cannot determine the case based on the sympathy I feel for two loving parents who desperately want their child home. I must ask myself whether the making of a care order is a proportionate response to the difficulties in this case and I am quite sure that it is. These parents are not able to meet their child's complex needs and his needs are such that he needs a very high standard of care and attention and commitment to working with others. So, in all the circumstances, I make a care order. For the future, I very much hope that the parents will be able to reflect on the judgment and think hard about how he should be cared for when he reaches 18 because it would be, in my judgment, regrettable if, at that point, a consensus could not be agreed about his care going forward.
- As for contact, his parents may not appreciate this but, for a child living permanently with foster parents, it is a high level of contact which is being offered. The guardian is clear, as is the social worker and, indeed, Miss Precey, that this is the highest level which will allow James to have a proper family life and experience with his foster carers but also to maintain a close and loving relationship with his parents. I also have to take into account that the foster carers need to have some uninterrupted weekend time as well. I approve the plan for fortnightly contact. I also do not think that staying contact is advisable at this time as I accept the evidence of the guardian that that would be confusing for James. I do not think we need a contact order. I think it is, indeed, unwise. The care plan is clear as to the level of contact proposed and I believe the Local Authority will agree to it being six not five hours and that part of the plan can be amended.
- I have no doubt that consideration will be given in LAC reviews for additional contact in holiday periods if it meets James' needs from time to time but it will only be if the parents can start working more with the professionals and the foster carers in my view. It will only be if the parents are not meeting James' needs in contact that there will be a reduction in contact and an order will make arrangements unnecessarily rigid when we need flexibility. I very much hope that F and M will be able to work with the foster parents from now on which will assist in making contact work to everyone's benefit.
- I have now said all I wish to say unless anybody thinks I have left anything out.
MR FLETCHER: Your honour, obviously, when the transcript is available, there may be others but there was one factual issue that I identified. I think it was very early on in your judgment. You said that the social worker persuaded the parents to James going to school I think in late January. In fact, from the chronology, they agreed to him attending school on 30th December.
THE JUDGE: Yes, I recall that now and then he started. It had to be arranged. Yes?
MR FLETCHER: Yes.
THE JUDGE: Yes, that's correct.
MR FLETCHER: Your honour, I would invite you to expand if you feel willing or able to on your reasoning in respect of why other forms of orders, i.e. a supervision order or a
THE JUDGE: A child arrangements order with or without a supervision order would mean that James would be living at home. I have already said that the home conditions are not suitable. It would also mean that the parents are the only ones with parental responsibility. I have found that they have not exercised their parental responsibility over the last few years wholly with James' best interests at the centre. The failure to seek out the medical and therapeutic help he needed is just one example of this. The failure to send him to school is another. A supervision order would not give the Local Authority sufficient power to ensure that those needs were addressed, quite apart from the fact that it is an order only for one year. This is a case where it is essential that the Local Authority share parental responsibility with the parents and, as I have said, James was not doing well at home and I do not think he can do well at home. He needs to be in his foster placement in order to have his needs met. I therefore cannot see any other order which could ensure that his needs are met. I think I have finished now.