England and Wales Family Court Decisions (other Judges)

IMPORTANT NOTICE

IN THE FAMILY COURT SITTING AT LEEDS

CASE NO LS17C00361

Leeds Civil Hearing Centre

Coverdale House

Leeds

5 January 2018

Before:

RECORDER DARREN HOWE QC

Sitting as a Judge of the High Court

BETWEEN

A LOCAL AUTHORITY

Applicant

and

M

1^st Respondent

and

T

(By his Children’s Guardian)

2^nd Respondent

Ms Lisa McCormick (instructed by the Local Authority Legal Department) appeared on behalf of the Applicant.

Ms Philippa Wordsworth (instructed by Sugaré & Co) appeared on behalf of the Mother.

Mr Nigel Bowman (instructed by Graham Stowe Bateson) appeared on behalf of the Child.

Judgment

Mr Darren Howe QC :




The Parties



1. In these proceedings I am concerned with the welfare of one child, who I shall refer to as T. T is now aged 13 years and currently resides in a specialist residential unit under the auspices of an interim care order. The parties are agreed that the circumstances in which T lives amount to a deprivation of his liberty.


2. I shall refer to T's mother as M and T's father as F. F was represented during the early stages of these proceedings. At the IRH on 4^th December 2017, I was informed that F had not, for some time, provided instructions to his solicitors. I invited those representing F to consider what role, if any, they would take at this final hearing in the absence of instructions from their client; the aim being to save costs to the public purse if F was to play no active part at this hearing. Rightly, in my judgment, a representative for F appeared on the 1^st day and asked to be excused further attendance, as F had still not provided instructions. I granted that application and F has not participated or been represented in this final hearing.


3. T has a children's guardian in these proceedings [CG]. T has been represented by Mr Bowman.





The Applications



4. On 28 April 2017, the local authority issued an application for a care order. The local authority then sought an interim care order on a plan that T would, following a period of transition, be placed in a specialist residential unit.


5. An interim care order was granted on 26^th May 2017. Specific allegations were pleaded that the threshold criteria was met on the basis of section 31(2)(b)(i), due to T suffering significant harm as a result of the parenting provided by M. For the purposes of a less contentious way forward, the threshold criteria for the making of the interim order was amended to section 31(2)(b)(ii), that being that there were reasonable grounds to believe that T was beyond parental control. M did not oppose the interim threshold or the interim care plan.


6. On 30 June 2017, T moved to X unit. This unit provides him with accommodation, care and on-site education. Restriction of T's movement, his confinement in certain areas of the accommodation and his inability to leave are features of the care provided to T. On 4^th September 2017, the local authority issued an application seeking leave to invoke the inherent jurisdiction of the High Court for the purpose of obtaining permission for the deprivation of T's liberty at X unit. An interim authorization was granted on 8^th September 2017.


7. On 4^th December 2017, the local authority issued a further application seeking an order pursuant to the Court's inherent jurisdiction. This 2^nd application sought a declaration that it is in T's best interests to receive the MMR2 vaccine. At the Issues Resolution Hearing, that took place before me on 4^th December 2017, the local authority advised that M also opposed the administration of risperidone (an antipsychotic) and melatonin (a sleep aid); drugs that had been prescribed for use in August 2017. I directed, in the absence of agreement, that all issues concerning the administration of medication or vaccination would be determined at this final hearing.


8. M opposes the application for a care order and does not agree that the section 31(2) threshold criteria are satisfied. M does not agree the care plan. It is M's case that T should be returned to her care with a package of support being provided by the local authority. M has now agreed to T receiving the MMR2 vaccination but she remains opposed to the administration of risperidone and melatonin.


9. The issues that the court has to determine can, therefore, be summarized as follows:



(a) Are the section 31(2) threshold criteria satisfied either on the basis that T is beyond parental control or due to him suffering or being likely to suffer significant harm attributable to the care he was likely to receive from M, that care not being what it would be reasonable to expect a parent to give?

(b) What impact, if any, does T's own impairment have on whether the court can find him beyond parental control; it being the expert opinion before the court that it is unlikely that any carer could meet his needs in a home environment? Should the Court prefer the assessment of the law provided by HHJ Bellamy in Re K (Post-Adoption Placement Breakdown) [2013] 1 FLR 1, or the opposite conclusion reached by HHJ Redgrave in Re P [2016] EWFC B2 (26^th January 2016)?

(c) If threshold is satisfied, is the local authority's care plan a necessary and proportionate response to the risk to which T would be exposed if returned to the care of M or, when comparing all advantages and disadvantages of the realistic options, should M's plan be preferred?

(d) If a care order is made, do the arrangements for T's care within X unit amount to a deprivation of his liberty and, if so, is a declaration authorizing the local authority to deprive him of his liberty required? Should the court grant the various declarations sought by M concerning the circumstances of T's care at X unit and, specifically, what steps should be taken to promote T having some less restricted time within and outside if the unit? When should the court review its declaration and the need, if any, for the continuation of arrangements depriving T of his liberty?

(e) If a care order is made, are the proposed administrations of risperidone and/or melatonin of such gravity that the local authority cannot consent to such administration, given M's active opposition? If so, should the court grant a declaration, pursuant to the Inherent Jurisdiction of the High Court, authorizing the local authority to administer the medications?

10. The evidence and submissions made by the parties were heard over 5 days in December 2017. Given the complexity of issues to be determined, and the absence of agreement between the parties on all matters, this judgment is by necessity, lengthy. I am grateful to all advocates for the assistance they have given the court, both during the hearing of the oral evidence and in the helpful written submissions provided.





Contents of Judgment




Page 4 - Background

Page 6 - Care of T prior to January 2017

Page 16 - Shared Care from February to May 2017

Page 20 - Threshold Criteria

Page 28 - The Competing Proposals for T's Care

Page 35 - Decision and Discussion concerning Placement

Page 37 - Deprivation of Liberty

Page 40 - Applications for Further Declarations

Page 41 - Authority to Administer Medication

Page 45 - Legal Principles Applicable to the exercise of Parental Responsibility by a Local Authority

Page 50 - Orders and Next Steps




The Background



11. In describing the background to the current applications, I will address some matters upon which the parties do not agree. I will give my findings on these disputed matters when setting out my narrative of the history and when doing so I apply the following principles:



(i) The burden of proving an allegation rests with the party who is making it;

(ii) The standard of proof is the simple balance of probabilities;

(iii) Findings must be based on evidence and on inferences that can properly be drawn from the evidence but cannot be based on mere suspicion or speculation;

(iv) Evidence cannot be evaluated and assessed in separate compartments. A judge in these cases must have regard to the relevance of each piece of evidence to other evidence and exercise an overview of the totality of the evidence in order to come to a conclusion.

12. In her closing submissions, Ms Wordsworth relies upon the judgment of the President in Darlington Borough Council v M and Others [2015] EWFC 11, as endorsed by the Court of Appeal in J (A Child) [2015] EWCA Civ 222, where at §56 Aitkens LJ said:



"Hearsay evidence about issues that appear in reports produced on behalf of the local authority, although admissible, has strict limitations if a parent challenges that hearsay evidence by giving contrary oral evidence at a hearing.  If the local authority is unwilling or unable to produce a witness who can speak to the relevant matter by first hand evidence, it may find itself in "great, or indeed insuperable" difficulties in proving the fact or matter alleged by the local authority but which is challenged."

13. It is M's case that she has provided her response to a number of matters in the witness box and, where her oral evidence is in conflict with a recording put to her, it is submitted that I should prefer M's oral evidence where the author of the recording has not appeared before me.


14. Hearsay evidence is admissible in these proceedings concerning a child but I must carefully assess the weight to be given to any hearsay evidence, particularly where that hearsay evidence is disputed by M. When undertaking this task, I have reminded myself of the views expressed by Hayden J in Westminster City Council V M, F and H [2017] EWHC 518 (Fam), where at §25 he said:



"The Local Authority must, ultimately, assess the manner in which it considers it can most efficiently, fairly and proportionately establish its case. The weight to be given to records, which may be disputed by the parents, will depend, along with other factors, on the Court's assessment of their credibility generally. Here, the reliability of the hearsay material may be tested in many ways e.g. do similar issues arise in the records of a variety of unconnected individuals? If so, that will plainly enhance their reliability. Is it likely that a particular professional e.g. nurse or doctor would not merely have inaccurately recorded what a parent said but noted the exact opposite of what it is contended was said? The reaction of witnesses (not just the parents), during the course of oral evidence, to recorded material which conflicts with their own account will also form a crucial aspect of this multifaceted evaluative exercise. At the conclusion of this forensic process, evidence can emerge and frequently does, which readily complies with the qualitative criterion emphasised in Re A (supra)…

I would add to my analysis above the observations of Dame Elizabeth Butler Sloss in Re T [2004] EWCA Civ 558 at §33:

"Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof."




T's care prior to January 2017



15. T and his family have been known to children's services since 2007, when T was placed in emergency foster care following a house fire that occurred when T was left home alone. Care proceedings were issued and, following an 8 month period of assessment during proceedings, T was returned to M's care with the support of a 12 month supervision order.


16. In 2008, T was diagnosed with autistic spectrum disorder [ASD] and severe learning disability. There is no evidence before me that M was not, at that time, managing T's needs. T attended a specialist school for children with complex needs and was transported to and from school by M. M cared for T herself at home with limited support from the local authority.


17. When SW gave evidence, she told me that M made contact with the local authority on a number of occasions between 2008 and 2012 when she felt she needed assistance, but it was not until 2012 that the local authority completed a formal assessment. From August 2012, the local authority provided T with respite care at Y unit and T was a child who, from that time onwards, was open to the local authority children's health and disabilities team.


18. The current social worker was allocated in 2015. At the time she became involved, T was receiving 18 nights respite per year at Y unit; this being provided in periods of 2 or 3 nights at a time.


19. When living at home with M, it was a feature of T's behaviour, as it is now, that he would destroy property. As it has been described to me, T has a particular skill in deconstructing almost anything in his environment and steps taken to fortify his living spaces have usually been unsuccessful in reducing T's ability to dismantle almost anything that is left within his reach. T also gained pleasure in throwing items from the windows of M's home. As a combination of these behaviours, M's home regularly required repair and her garden was often littered with items, such as beds that had been broken by T and with rubbish that T had thrown from the windows. As I heard from M and SW during their oral evidence, T's behaviour and the build-up of rubbish became a source of conflict between M and her neighbours.


20. In January 2016, the Housing Authority was undertaking planned work within M's home that was, M tells me, primarily to replace or update her kitchen. It was M's evidence that when the workmen attended at her home, and not before, she was informed that the electrical wiring within the home needed replacing and the workmen then set about exposing and stripping-out the old wiring. M told me that she considered it unsafe for T to be in the home at this time due to the dust created by the work and as exposed electrical cables were accessible to T. M said that she contacted the local authority for assistance.


21. In her oral evidence, SW was critical of M for not contacting the local authority prior to the day the work was due to commence, as it was then necessary for emergency arrangements to be made for T to be accommodated at Y unit. Given that I have been provided with no evidence as to what notice M had of the work that was to be done within the home, M having told me that she had been provided with a temporary cooker by the Housing Authority so she was able to provide for T's needs had the work been limited to the kitchen, I do not find the local authority's allegation, that M had failed to make adequate plans, proved.


22. Later in 2016, it was necessary for work to be completed at M's home to ensure that T no longer had unrestricted access to the kitchen. M told me that she usually heard T moving around if he woke in the night, something that he did regularly as M said he would get to sleep easily but then often wake at 2 or 3am. What happened in April 2016 was that T woke in the night, was not heard by M and he made his way down the stairs to the kitchen and decided to make himself some toast. Unfortunately, T was not proficient with the use of the toaster. He burned the toast and set off the smoke alarms. M told me that this episode scared her and, with the help of the occupational therapist [OT], had locks put on the internal doors so that T no longer had unrestricted access around the home.


23. In May 2016, again during the night, T dismantled an extractor fan in the bathroom. In doing so, he exposed the internal electrics and placed himself at a significant risk of harm. Again, M did not wake when this was taking place so a lock had to be put on the bathroom door.


24. T's activities within the house were noted by the Housing Department, who referred to children's social care their concern that the home was damaged, untidy and dirty. It must have been extremely difficult for M to keep one step ahead of T to prevent him from destroying the home and then equally exhausting when she was unable to prevent his destructive behaviour, and was then left tidying-up what followed. In May 2016, the local authority funded the provision of a skip to enable the garden to be cleared of all the rubbish that had accumulated.


25. In June and July 2016, T's school made 2 referrals to the local authority. On 21 June 2016, the school reported that M had been in low mood and was crying when she collected T from school. On 5 July 2016, the school reported that M was going to move to London and leave T behind. On 1 July 2016, the local authority say that M called and said that she was going to drop T at the social care office as she could no longer cope.


26. In her oral evidence, M denied that she had cried when at school. She was pressed about why the school would invent such a story but M maintained her denial of the accuracy of this statement. She also said she did not know where the social care office was located so could not have taken T there, even if she had said she would, which she denied. She also told me that she did say that she would leave T behind and move to London but she explained that this was a joke. I was concerned by M's denials of these events as these appeared to me to be understandable expressions of her need for help in an increasingly difficult situation. Whether I accept M's denials is a matter I shall return to later in this judgment.


27. During 2016, the educational psychologist at T's school had recommended consistent boundaries be employed at home to ensure that T knew what was expected of him. M was given advice on activities to undertake at home to distract T from his destructive behaviour. SW told me that T had started drawing on the walls and she advised M to put a boundary in place as otherwise this behaviour would escalate. The behaviour did escalate and T then began digging holes in the walls, which was an activity M was unable to prevent and exposed T to the risk of significant harm as he would expose electrical wiring when digging into the walls within the house. I was told about 1 very large area on one wall that T had dug into that measured some 2 meters or so across and as far up the wall as T could reach. M told me that it was not possible for her to watch T all of the time, as she had to cook meals in the kitchen and use the bathroom herself. It was SW's evidence that the degree of damage to this internal wall represented a failure by M to adequately supervise T. M said the extent of the damage was due to the housing authority not attending to repair the wall. I reject that suggestion. The area of damage grew and grew in size as T had repeated access to that wall when unsupervised.


28. In her oral evidence, SW told me that T had, in the summer of 2016, started to remove his clothes regularly and would try doing so at the point of leaving school. She also said that she had never really seen T wear clothes at home as M allowed him to be naked, as this is how T preferred to be. When M gave her oral evidence, she said that T wore clothes at home if someone was present but if it was just her and T, she permitted him to be naked. The SW's evidence concerning T being naked was given as a general observation of how things were in the home when she visited. There was no sense of criticism about it save that once this had become an established behaviour, which it had well before this social worker had become involved, she said that it is very difficult with autistic children to change that behaviour. It was therefore notable that M, when giving her own evidence, said that T did wear clothes when visitors were in the house. I entirely accept SW's evidence that T was naked when she visited. SW told me that it was only shortly before T left M's fulltime care that M had begun to be successful in establishing a routine for T to wear shorts when downstairs at home, this becoming necessary as T was entering puberty. M accepted this when I was put to her. M's earlier answer that T did wear clothes when there were visitors in the home I find to be untrue and an example of M's denial and minimization of the challenges that she was facing in caring for T.


29. In November 2016, the neighbours complained about rubbish being thrown into the garden and T being naked outside. M accepted that T would throw items into her garden and over into the neighbours' gardens to the extent that the neighbours placed some coverings over part of the boundary between the homes. Given T's desire to be naked at home, it is in my judgment very likely that he would be naked, at times, when in the garden, and I find this to be so.


30. There was also complaint by the neighbours that T would eat his faeces. M said that she had never seen T do this but SW told me that T would put faeces in his mouth and then spit or spray it out. I accept SW's evidence that this was a behaviour that T displayed. Again, I observe that this must have been extremely distressing for M and very difficult for her to manage.


31. T was seen to be naked by workmen at the home in January 2017. The workmen were concerned for T's welfare as they saw him upstairs naked in a room covered in faeces when, they reported, M to have been downstairs smoking in the living room. The workmen reported that T's parents were both smoking downstairs, suggesting that M had a male in the home with her.


32. When first asked about this recording, M denied that this had occurred. She denied that she had let workman into her home and let them go upstairs alone. She denied that they would have seen T or a room soiled with faeces, as she would never have let anyone upstairs on their own so the whole account they had given was wrong. When I asked M about this report, M accepted that she had been smoking downstairs but in the kitchen, that she had taken the workmen upstairs, and they would have seen T in his bedroom. M accepted that T was likely to naked in his room at this time and, given the T had begun smearing faeces, they may have seen and smelled faeces in the room. This was a very clear example of M's propensity to try to deny any matter that could possibly be seen as her not managing the demands of T's care.


33. A further example of M's dishonesty in the witness box arose when she was being asked about why an empty bucket had been left in T's bedroom. When a lock was placed on the bathroom door, T had no access to the bathroom when he woke at night. During her oral evidence, SW described that M would leave a bucket in T's room for him to use if he needed the toilet a nighttime. SW said that when this bucket was introduced, T developed an obsession with his faeces and this is when his smearing of excrement began. The SW went onto describe how a toilet was then built in T's bedroom at the end of 2016 but it was not sufficiently robust to withstand T's destructive behaviour and it was soon taken apart. It was not until early 2017 that a prison-style toilet, that could not be broken, was installed.


34. When M gave her evidence, she denied that T had a bucket in his room for toileting and said that the bucket seen in T's room did not contain urine, as had been described. M's account was that the bucket contained dirty water that she had left following her attempts to clean T's room. It was M's evidence that, if T wanted to use the bathroom, he would ask her to unlock it. That answer made no sense to me as M accepts that T was smearing faeces and that this was very difficult indeed for her to manage. He clearly was not asking M to let him into use the bathroom. I do not accept M's evidence that she did not leave a bucket in the room for T to use and I accept the evidence of SW that it was following this that the smearing started. In my judgment, M was not to know that this seemingly practical solution to T's nighttime toileting would then lead onto the smearing that caused so much difficulty and, on the evidence I have heard, continues to be a feature of T's behaviour. What has concerned the court is that M has, on my finding, lied about her use of the bucket and this is another example of her denial and minimization.


35. Given the obvious health risks to T of the presence of excrement in his bedroom, it was extremely important that any smearing was cleaned away properly and promptly. On Friday 25 November 2016, the occupational therapist reported to SW her concerns about the condition of T's bedroom and the presence of smeared faeces. SW visited on Monday 28 November 2016 and found T's room 'covered' in excrement. SW describes some as old and dried and other patches as fresh. The condition of the room was so concerning that an emergency short break was arranged for T and the local authority arranged for a cleaning company to undertake a deep clean of the property. When M gave her oral evidence, she told me that she was cleaning T's room when the OT visited on the Friday and she said she had cleaned on Saturday and Sunday. She denied that she had failed to clean T's room adequately, saying that the smell was so bad that it would be impossible to leave it for a whole weekend. Having heard evidence from SW and from M, I prefer the evidence of SW. She visited the home and saw conditions for herself. The OT was sufficiently concerned to make a referral, which prompted SW's visit and it was then necessary for industrial cleaners to visit. This would not have been necessary had M's attempts to clean the room been adequate. I accept SW's description that there were areas of dried faeces that were likely to have been present for a number of days.


36. On 6 January 2017, workman again attended at M's home but this visit was necessary to repair the boiler. The boiler was located in T's bedroom and he had managed to remove a pipe. The room was found to have high carbon monoxide readings. When workman attended again, on 12 January 2017, to relocate the boiler to another room, they found excrement on the floorboards and pipes. In her oral evidence, M told me that T had smeared faeces on the top of the boiler cabinet that she had only located by the smell, as the cabinet was high up on the wall and she was not able to see the top. When the workmen left on 12 January, not having fixed the boiler that had, by that time, not been working for some time, it is SW's evidence that M was very upset and said she could not care for T any more. In her oral evidence, M denied saying that she could not cope but said she was suffering with flu, the boiler had not been working so she had been bathing T by boiling hot water and she was exhausted. Having heard the evidence of SW and of M, I prefer SW's evidence that M said that she could no longer care for T. SW told me in her oral evidence that she encouraged M to agree to T having a period of respite at Y unit so that M could clean up T's room to enable the workmen to return and fix the boiler. M agreed and T stayed at Y unit for, what was intended to be, a short period of respite


37. M was due to collect T from Y unit on 15 January 2017, her having asked Y unit to keep T for an extra day. M did not arrive to collect him. In her oral evidence, M said that she was told that T could not go home until the house was safe for him but that does not fit with her being expected to collect T but then just not arriving. M later said that she was so distressed that she felt unable to visit him. M failed to visit T for 10 days, an absence that was, no doubt, confusing for T.


38. T stayed at Y unit until 27^th January 2017 and a shared care arrangement was then introduced. As I understand it, T had 6 nights at Y unit, then 2 nights at home, 2 nights at Y unit and then 4 nights at home. A pictorial calendar had been prepared for T so that he could see, and begin to understand, when he would be at home and when he would be at Y unit. When M gave her oral evidence, she accepted that she had not used this calendar. M thought it better for T that he would not be told where he was to be each night so he would be collected from school and taken to one place or the other. M explained this decision on the basis that she said T was upset all day if he knew he would be going to Y unit and not coming home. Later in her evidence, M accepted that her decision not to use the pictorial calendar, as had been advised, was due to her own upset at T not coming home each night.


39. There have been a number of occasions, relied upon by the local authority, where it alleges that M has not followed advice. When the current social worked was allocated, T's nights at Y unit were increased to 34 nights and 6 hours of assistance within the home was provided. Direct payments were offered to M for her to buy-in the support that she needed, but M did not complete the paperwork a timely way so did not take advantage of this potential source of support. Some time later, the local authority identified support workers for M. Nurses from the learning disability team were engaged to provide M with advice on how to change and manage T's behaviours.


40. One of the difficulties faced by M was that T would wake in the night and, as already described, would place himself at risk of harm. He would destroy property if M did not wake and hear his activity. It was the suggestion of CAMHS that medication be prescribed to T to assist him sleep through the night. M did not accept this advice, preferring to give T cherry juice, that M believed would assist T sleep. I heard a great deal of evidence about the use of this juice in preference to accepting the advice of CAMHS. M was advised to keep a sleep diary so that it could be established if the use of cherry juice assisted in establishing a longer night's sleep. M was also given 'sleep hygiene' advice to reduce the stimulants in T's diet and environment that may reduce his ability to sleep.


41. When SW gave her evidence, she reported that M told her that she had to use a specific type of cherry juice but had not been able to give it to T as it was expensive and she could not afford to buy it. M's evidence was that she did give T the cherry juice but she forgot to give the local authority the diaries. When cross-examined, M said that she had been giving T cherry juice for a long time and that it had helped him get to sleep. She repeated that she had simply forgotten to give the sleep diaries to the social worker. I found M's evidence on this issue inconsistent and unreliable. The advice given by CAMHS was to try some medication to enable T to sleep through the night, as he was waking in the night and then causing damage. M's evidence was that she preferred to try cherry juice than give T any drug therapy. If M, as she later told me, had been giving T cherry juice for some time, she already knew that it was not successful in keeping T asleep so it was not, in my judgment, good reason for rejecting the advice given by CAMHS. I also do not accept that M had completed the sleep diaries that had been advised.


42. The local authority also complains that M did not follow the sleep hygiene advice provided by CAMHS. M accepted this allegation on the basis that they did not tell her anything new, what they suggested she had tried before and it had not worked. It was M's evidence that she needed ideas and strategies that she had not already tried.


43. M also described how she found the assistance provided by PF, a specialist family support worker who provides assistance for all children who attend specialist schools in her locality, unhelpful. PF's work with M commenced in April 2016. SW described that PF's work with M was unsuccessful for a number of reasons. Firstly, M seemed unwilling to work on anything other than improving T's sleep. Secondly, weekly sessions were offered but M said this was too invasive so fortnightly sessions became the plan but, thirdly, M did not engage in all the sessions that were to take place.


44. When M was asked about the work undertaken with PF, she said that PF encouraged her to use strategies that were successful in school. One such strategy was to provide T with blocks that he could play with, to distract him from destructive behaviour. M said that when T was at home, he would post the blocks out of the letterbox or throw them out of the window and she would then have to buy new ones. M said that she knew they were a success at school but at home, she said T was not interested in them. Whilst I do not doubt M's evidence that T would throw these blocks out of the window or through the letterbox, in my judgment it is likely that he had the opportunity to do this as he was not being supervised by M. I asked M about T's need to be distracted by an activity so that he was not bored and then engaging in destructive behaviour. I heard evidence about T enjoying playing with play dough and balloons and puzzles. M also told me that T enjoyed colouring. T has, both at home and at X unit, been provided with toy slime and corn flour as he enjoys the feel of them, he likes throwing and, no doubt, making quite a mess. What was clear from all the evidence that I have heard is that, if left to his own devices, T will engage in destructive behaviour that can, if not properly supervised, expose him to the risk of significant harm.


45. SW described T's school as 'brilliant' with T. She said that the school provided advice to M and offered M an appointment with the school nurse concerning T's sleep, as the school nurse would be able to make a referral to a paediatrician. It was SW's evidence that it was extremely unusual for a child with T's level of need not to have a paediatrician, who took a lead role in his care. SW said that she discussed the need for T to have a paediatrican with M, and had done so many times, but M did not want T to have a paediatrican as M was opposed to T receiving medication.


46. Despite the advice from SW and the school for M to speak with the school nurse, SW said that M did not attend, so there was no referral to a paediatrician until SW made one herself. In M's evidence, she said that she was sure that she had been to see the school nurse. I am unable to make a finding as to whether M did see the school nurse as I have no records from the school to assist, but I accept SW's evidence that there was no referral to a paediatrician until SW made the referral herself.


47. When at school, one strategy employed by staff was to give T paper to tear. M implemented this at home and she told me that she would obtain copies of the Argos catalogue and T would be given these to shred. However, T then moved on from paper and began shredding clothes. M described that he would take clothes from wardrobes and tear them up. She had to buy cheap clothes that he could then shred. M said that T had never shredded the clothes that he was wearing but would take clothes that he was not wearing and destroy them. During the course of M's evidence, it was suggested to her that she had set T down this particular path of destruction by providing him with paper to shred. M's response was that school gave T pieces of paper that he was allowed to tear into strips and her providing him with the catalogues was just an extension of this practice. I accept that part of M's evidence. As with the smearing, M could not have predicted that T's behaviour would develop to the current situation where he will regularly remove and shred the clothes that he is wearing and will do so in the presence of other young people and staff at X unit, with no recognition that he should cover himself when in company.


48. In 2016, the local authority provided 2 additional support workers, on 2 evenings each week, to assist M in her care of T. It has been M's evidence that she expected these assistants to provide care for T so that she could have a break. In her oral evidence, M complained that these workers had very little experience and did not give her any autism specific strategies. It was SW's evidence that the support workers were instructed to assist M with her care of T and not to take over to give M a rest. M complained that the workers had limited experience of working with autistic children. SW explained that the workers were chosen from a 'bank' and their CVs were seen by M before the workers were engaged. There is no evidence before me that M raised complaint about these workers during the period that they were engaged. SW told me that M did not want people attending at her home and when the local authority made suggestions for work that could assist, M would turn them away. Having considered all the evidence, I accept that M was rejecting of professional support in the home. I entirely accept that M was successful in getting T to school and I applaud the commitment that she demonstrated and continued to demonstrate but in my judgment, this was an exhausting task for M and there were times when it just became too much for her to manage.


49. Due to T's routine of waking in the night, when taken with the demands of caring for a child with T's level of need, it was understandable that M would be tired and would need to catch up on her sleep at times when T was at school. However, SW described that M would use her need to sleep during the day as reason why she would not engage with services or not want professionals visiting the home as she found this intrusive. It is, in my judgment, unfortunate that M did not fully engage with all that was offered or act on the advice that was given, as I find she did not. Consistently employed behavioural strategies when supported by appropriate nighttime medication may well have improved T's sleep at night and his behaviour during the day, so as to reduce the need for M to sleep during the daytime herself. In my finding, M wanted some time for herself without interruption from outside agencies. Whilst understandable, this desire led M to either refuse work or not to engage with work that would have been of assistance to her and to T.


50. M had assistance from the occupational therapy team, who provided M with practical support such as altering the home so as to reduce T's ability to cause himself harm. I have already referred to the toilet that was installed in T's bedroom and the locks that were fixed to internal doors and to the gate on the drive, but there were also perspex panels fixed to walls to prevent T from damaging the wall and to make the smeared faeces easier to clean away. M told me that beds and mattresses had to be changed frequently and T's room had to be stripped of anything that could be dismantled.


51. The local authority seeks findings that M did not present T for a number of important medical appointments. It is said that M did not take T to the GP when advised to do so in January 2017. It is alleged that M failed to take T to a planned health needs assessment in March 2017. In her oral evidence, M said that she had not missed any hospital appointments. However, when asked about whether she had made an appointment for T to see the GP on 10^th May 2017, M accepted that she told SW that she had made an appointment but she accepted she had lied, as no appointment had been sought. In my judgment, this is a significant event, not because it is the only occasion when M had admitted being dishonest but because later in her evidence M described the injuries that T had caused to his face as looking like he had been seriously burned, or to use M's own words "he looked like a burns victim". I prefer the evidence of the social worker, as supported by the records produced in the bundle, that M failed, at times to ensure that T attended necessary medical appointments.


52. Having heard detailed evidence from the social worker and from M, I am satisfied that the local authority attempted to implement an appropriate package of support to assist M in meeting T's needs within the home. I am equally satisfied that M struggled to accept all elements of the package offered. I accept SW's evidence that M found professionals visiting the home intrusive. I also accept that she did not act on all the advice that was given and this was particularly significant as T's needs require that boundaries and strategies are consistent and predictable. In my judgment, M thought that she knew better than those professionals tasked by the local authority to provide M with advice, in a similar way to M thinking she knew better than the doctors at CAMHS who had provided advice to M that T should be provided with sleep aid medication. However, having heard M's evidence, I am persuaded that M's actions were not as a result of a lack of concern for her son or a disregard for his welfare. The demands of caring for T were enormous and just too much for M to manage. As she demonstrated when giving her evidence, M was unable to accept that she was not managing. She failed to recognize that she needed to accept the advice that she was being given and, even in the cold forensic light of the court, M remained in a state of denial as to how her ability to care for T had not kept pace with his ever increasing needs.



The Period of Shared Care from 27 February 2017 to 2 May 2017



53. As set out above, when T experienced a period of extended respite care at Y unit, M did not visit between 13 January 2017 and 24 January 2017. The local authority issued a PLO letter to M on 24 January and on 27 January 2017, M signed a section 20 agreement as she did not feel able to care for T at home without an agreed plan of support in place. Between 24 January 2017 and 27 February 2017, M had contact with T on 4 occasions each week and she attended every session.


54. The arrangements that were implemented I have set out at §38 above. All parties agree that T did not manage these new arrangements. In her statement for this hearing, PF states:



"M had a reluctance to try most strategies suggested in the home, she voiced that: she had already tried them without success, she didn't think that they would work, they were too difficult to sustain, she was too physically and mentally drained or they weren't manageable when it was just her and T. M identified new strategies that she hadn't tried before, for example using the iPad to teach T to engage in more meaningful activities, when she discussed the ideas she was enthusiastic and motivated, but then didn't implement them, voicing physical and mental exhaustion as the main barrier.

M was more engaged with family support during the time that T was at Y unit. She was visibly more motivated and enthusiastic about planning for T's return during the reunification process and support sessions were more regular and longer in duration. The outcome of this was a clear plan for supporting the evening routine and addressing smearing/ vomiting behaviours. As T's reunification progressed however, M became less engaged. She struggled with people coming into her home to support with the evening routine. This impacted on her implementing the evening routine that we had developed. M voiced anxiety around T transitioning between home and Y unit, feeling guilty that she was sending him there because he was clearly indicating that he wanted to be at home. This impacted on M being able to engage with fully preparing T to manage his new shared care arrangements."

55. The vomiting behaviours PF refers to involved T making himself sick. M says that T learned to do this as, when he was sick at school, he knew that M would then collect him and take him home. This self-induced vomiting has continued during his placement at X unit.


56. In her interim care plan presented to the court in May 2017, SW reports that:



"T displays as an anxious young person, due to his Autism he needs consistency and needs to understand what is happening next by having structured routines. At home T has always had very limited boundaries and routines which is likely to have contributed to challenging behaviours in School and at Y unit. T's level of need means that he requires a lot of time to process information and it takes T a long time to settle into changes in his routines. Over the past few months there has been deterioration in his behaviours (destructive and self-harming) and I have observed an increase in his anxiety. T has been very confused with first why he could not go home and then over the last two months by the pattern of shared care. It is anticipated that T will initially struggle with moving into a full time residential placement, due to the change in routine and being unfamiliar with staff. In addition, T loves his mother and they have a very close relationship and being away from her will be difficult for him. Children's Social Work Service and professionals working with T will work closely with the residential unit to ensure he has a planned and positive transition."



57. It is perhaps not surprising that the absence of consistency in the care provide at Y unit and the care provided by M caused T confusion and anxiety. He would be away from M for periods of up to 6 days and then back in her care for periods of up to 4 days. I heard oral evidence from Dr Singh, a Consultant Child and Adolescent Psychiatrist instructed for the purpose of these proceedings. It was his opinion that moving backwards and forwards between home and respite care can be counter productive for a child with ASD, as change causes anxiety. He advised that the degree of anxiety would depend on the level of the child's functioning.


58. When she gave her oral evidence, JC, the manager of X unit described T as the most challenging and complex child she has cared for in her 22 years of working with special needs children.


59. In his report to the Court, Dr Singh described that "T has significant difficulties with listening and understanding. His attention to spoken language fluctuates depending on the context in which he finds himself and the familiarity of the person speaking to him. He does show some understanding of spoken language especially when supported by visual aids. T's expressive language is also severely delayed, he produces tuneful babble-like vocalisation, but they are not used in a consistent or functional manner. T also uses sign and gesture. His communication is facilitated by the use of picture exchange communication system."


60. In his oral evidence, Dr Singh explained that T's level of impairment is so great that he was unable to cope with the unpredictability of the shared care arrangement. He went onto explain that T's significant impairment results in him needing longer to settle into new arrangements. Dr Singh said that any change in environment would cause T anxiety and, to reduce this anxiety, T needs to be prepared for an expected change, rather than it just happening abruptly. Dr Singh supported the use of pictures to help T understand change and said that when the time for respite care was coming nearer, he needed to be shown pictures of Y unit to convey to him, in small bites that he can process and understand, the message that he would be staying at Y unit or with M. Given that T has a significant learning disability in addition to ASD, it was Dr Singh's opinion that this preparation work was all the more important as T would take longer to process the information.


61. During the period of time that T was residing at Y unit in January and February 2017 and in the period of shared care, he began rubbing his face, causing it to become very red and sore. This was a behaviour that had not been seen before but the injury he was causing himself was significant enough for M to describe that T looked like 'a burns victim'. Y unit prepared a report for these proceedings, and in my judgment the following extract clearly explains why the staff at Y unit took the view that they could no longer provide adequate care for T:



"..there seemed to be a hike and change in his aggressive behaviour particularly towards end of January / early February. He appeared more anxious by constantly rubbing his nose and face thus making his face even more sore and red. Again mum didn't take him to see the GP even though we advised it. T then started to display old behaviours of smearing faeces on a regular basis and vomiting in his bedroom - there does seem to be a slight pattern of this increasing after mum had visited or when he first comes in from home stays. He also began to start pulling his hair out again and that in his pubic region. He began again to destroy soft toys by ripping them and pulling the stuffing out. He started to rip and destroy his clothing and at times that of staff. He began to smash electrical items essentially his own iPad and on one occasion he shattered the glass and attempted to chew on this. Since late January / early February he is now much more inclined to damage property and any items he can access. There have been times when in crisis he would tear at other people's clothes and try to dismantle the fixtures in the bathroom including the toilet cistern and attempting to throw the broken pieces at a staff member.

When T was full time with us his behaviour seemed slightly more settled as he had an indication of what was expected of him and his communication methods and engagement appeared to develop. This is contrasted by when he was on short breaks. Evidence recorded shows that his behaviour was changeable each visit however; he did seem to be maturing even though his behaviour was often heightened during the actual stay. Currently T is staying on a shared care basis and he again appears to be struggling with this and he is indicating this with the significant increase in his challenging behaviours, his destruction of property, his social skills being lost and him socially isolating himself. Physically he seems to be off his food and refusing to eat and will throw items on the floor. He now is eating alone due to the significant risks he poses to his peers and to staff at key times such as mealtimes. He seems to understand when we count down the nights staying by using 'sleeps' until he sees his mum and seeing a photo of Mum does seem to bring some minor comfort but does not support him in the decrease of his behaviours. We have a structured behaviour plan in place which was developed with a multi-disciplinary approach to support him have some consistency but I am led to believe that this is not in place within the family home and can cause / create issues of boundary setting for T……..

Professionally we do not believe that the shared care arrangement is in T's best interest as he needs now firm and strong consistent boundaries twinned with a direct clear ethos of what is expected of him. I also believe that due to the level and intensity of his behaviours, which are challenging and increasing, he needs support from colleagues / professionals with an underpinning knowledge of his issues within a therapeutic environment to help him make sense of his presenting difficulties as he enters into puberty… In my professional opinion even though T is familiar with staff and some of the routines at Y unit, he has displayed behaviours, which would indicate that he misses his mum and his comprehension doesn't allow him to understand why he couldn't be at home or have a clear understanding of the timeframe of stays. His induced behaviours have escalated and this could be attributed to an increase in his anxieties of being separated from mum. He occasionally seems reluctant to go to school on occasions and get off the mini bus from school and staff believe this is because of understanding of where is going or staying. Y unit is able to meet his very basic needs in a safe environment but is unable to meet his full holistic he needs and address his complexities and I strongly believe for him to develop into a happy young man, develop his limited social skills and take the challenges of puberty and adult life ahead he needs a specialised therapeutic service that Y unit cannot and does not provide."

62. The Local Authority issued its application for a care order on 2^nd May 2017.





The Threshold Criteria



63. Section 31(2) Children Act 1989 provides as follows:



A court may only make a care order or supervision order if it is satisfied—

(a) that the child concerned is suffering, or is likely to suffer, significant harm; and

(b) that the harm, or likelihood of harm, is attributable to—

(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii) the child's being beyond parental control.





64. In her closing submissions, Ms McCormick seeks a finding that T was beyond parental control and asserts "it is worthy of note that there need not be a causal link between the parenting of a child and that child being beyond parental control for the purposes of section 31(2)(b)". The local authority has pleaded the threshold on this 'no fault' basis due to the expert evidence received from Dr Singh. In his report, Dr Singh advised "On the balance of probabilities it is unlikely that T's needs could be met in a family setting, due to the nature of his complex needs and difficulties. To set up a similar regime/package of care outside of a specialist autism residential facility with the same level of professional expertise would be extremely difficult. It would require very close coordination between Health, Education and Social Care." It has been said repeatedly throughout the hearing that T's needs are so significant that it would not be possible for them to be met in a home environment and, it is also the opinion of the social worker, that T's needs will increase as he passes through puberty and into adolescence and M will not be physically capable of managing him. The local authority's case is, irrespective of any failings there have been in the past, that meeting T's needs are beyond the capacity of any reasonable parent and he is, by reason of his level of impairment and the behaviours he demonstrates, beyond the control of M.


65. When he gave his oral evidence, Dr Singh said that specialist ASD units, such as unit X, have everything under one roof. He explained that when one tries to replicate that level of input in a community setting, it would require a great deal of coordination of the professionals involved, including education that would have the additional disruption of transport to manage. Dr Singh explained that due to T's level of need, there would have to be extensive input to help M manage T at home and the professionals working with M would need to have a high level of expertise in knowing how to manage ASD and T's significant learning difficulty. It was Dr Singh's opinion that the co-ordination required to manage T was unlikely to be replicated in the community. Additionally, it was Dr Singh's evidence that T will become much more difficult for M to manage as he progresses through into adolescence. Dr Singh said that it would be very difficult for M to manage T as a teenager.


66. M does not accept that T is beyond her control. It is therefore necessary to examine what is required by section 31(2)(b)(ii) Children Act 1989, apply the findings I have made in the paragraphs above and determine whether the local authority has proved that the threshold criteria are met.


67. As explained by Dr Singh in his report, T exposes himself to the likelihood of significant harm by:



(a) pulling out his hair from his head and pubic area;

(b) dismantling appliances and furniture;

(c) ripping off and tearing his clothes;

(d) smearing faeces and

(e) kicking-in doors when angry.

68. When angry and upset, Dr Singh describes that T will:



(a) bite;

(b) gouge at the faces of staff members;

(c) pull hair;

(d) spit;

(e) pull staff by the arms;

(f) hit and scratch.

69. Dr Singh advises "In light of his diagnosis and associated difficulties, T requires a consistent environment which he can relate to with minimal disruption/change and structures to help regulate his daily activities". Dr Singh also advises that T poses a risk to himself as he lacks insight to danger and any understanding of the need to maintain his dignity by remaining clothed when in company.


70. Given the findings that I have already made, and the evidence of Dr Singh that I accept, I find that at the time the local authority issued proceedings, T was suffering and was likely to suffer significant harm.


71. The local authority alleges that T suffered and was likely to suffer significant harm attributable to him being beyond the control of his mother. Whether there is the need for the court to find that the lack of ability to control the child is attributable to the parent rather than due to the characteristics of the child is a matter upon which there appears to be conflicting decisions.


72. In Re K (Post-Adoption Placement Breakdown) [2013] 1 FLR 1, His Honour Judge Bellamy, sitting as a Judge of the High Court, considered an application for a care order relating to a child diagnosed with reactive attachment disorder of childhood. Child K had been adopted but due to the extreme behaviours displayed by K, as a result of her attachment disorder, the adoptive placement broke down and the local authority alleged that threshold was crossed on the basis that K was beyond parental control. It was the evidence of the psychologist instructed in the proceedings that K was likely to suffer significant harm due to her suffering from a reactive attachment disorder and not because she was beyond parental control. The parents did not challenge the local authorities allegation that K was likely to suffer significant harm. What was in dispute, based on the evidence given by the psychologist, was whether that harm was attributable to being beyond parental control or whether it was due to K suffering an attachment disorder.


73. At §148 of his judgment, HHJ Bellamy said the following of the 'attributable to' requirement of section 31(2)(b):



"The clearest statement concerning the 'attributable' condition is to be found in Lancashire County Council v B [2000] 1 FLR 583. Lord Nicholls said that,

'5. …the phrase "attributable to" in section 31(2)(b) connotes a causal connection between the harm or likelihood of harm on the one hand and the care or likely care or the child's being beyond parental control on the other…the connection need not be that of a sole or dominant or direct cause and effect; a contributory causal connection suffices.'

In my judgment it is clear from that explanation that even if a child is likely to suffer significant harm as a direct result of a disorder which affects that child's behaviour, if the consequent behaviour is such that a parent is unable to control the child then the child's being beyond parental control is, at the very least, a contributory cause of the likelihood of future harm. "



74. When addressing the meaning of 'beyond parental control' HHJ Bellamy, at §152 of his judgment, referred an unreported decision of Butler-Sloss LJ on 18 March 1997, the neutral citation being Re L (a Minor) [1997] EWCA Civ 1268. Within her judgment, Butler-Sloss LJ said the following:



It is suggested most attractively by Mr Jubb in a long, careful, comprehensive skeleton argument and short, succinct oral argument to us that in order to show that a child is beyond parental control you must show some misfeasance by the parents. There is almost no authority on the phrase "beyond parental control" and certainly no authority to support the proposition, bold proposition as Mr Jubb is prepared to accept it as, that he makes to us today. We are asked to look at the useful Guidance to the Children Act, Volume 1, under 'Court Orders', which says at para 3.25:

"... the second limb is that the child is beyond parental control ... It provides for cases where, whatever the standard of care available to the child, he is not benefiting from it because of lack of parental control. It is immaterial whether this is the fault of the parents or the child. Such behaviour frequently stems from distorted or stressed relationships between parent and child."

That seems to me to be a useful summary of how those who put the Act together saw the use of what is a long-standing part of the previous child legislation of "beyond parental control". I consider that we should be very careful not to look at the words of the Children Act other than broadly, sensibly and realistically. I am much encouraged by the words of wisdom of Sir Stephen Brown P in Newham London Borough Council v AG (orse G) [1993] 1 FLR 281, [1993] Fam Law 122 in which he said (and I paraphrase) that the court should avoid an unduly restrictive and legalistic analysis of s 31. Quite simply this child is beyond the control of his parents. It is extremely sad. It is not a case of apportioning blame.

75. Later Butler-Sloss found:



"In Mr Jubb pursuing these fascinating but arid arguments as to what is meant by "beyond parental control", so far as I am concerned the Court of Appeal would not gain any benefit from the way in which this Act is to be interpreted by such a description and would be, in my view, more likely to look at it and say on the broad and sensible approach, "Look at what has happened to this child. The evidence is really undisputed and the law to be applied is that that evidence shows that he is beyond parental control and, as a matter of law, he is beyond parental control".

It may be that there will be other cases when it is necessary to look at what is meant by "beyond parental control", but, for my part, this is an absolutely straightforward case of a child who is beyond everybody."

76. At §167 of his judgment in Re K, HHJ Bellamy concludes:



"The parents concede that at the relevant date K was likely to suffer significant harm. On the evidence, they were right to make that concession. It is equally plain from the evidence that K is beyond parental control. The question of substance has been whether the likelihood of harm is attributable to K being beyond parental control or to the reactive attachment disorder from which she suffers.

It is plain from the guidance given by Lord Nicholls in Lancashire County Council v B that the likelihood of harm may be attributable to more than one cause. A contributory causal connection suffices. In this case it could, of course, be said that the fact that K is beyond parental control is itself attributable to the fact that she is suffering from reactive attachment disorder. That may be so. However, that argument cannot be allowed to subvert the primary purpose of s.31(2) which is one of child protection."

77. Judge Bellamy's order was successfully appealed in Re E (A Child) [2012] EWCA Civ 1773 but this appeal was concerned with his error in concluding that wardship was not an available remedy when a child was voluntarily accommodated under section 20 Children Act 1989. The appeal did not address the views expressed concerning section 31(2)(b)(ii).


78. On the facts of this case concerning T, no party has suggested that wardship is an appropriate outcome. M opposes the local authority's plans for T, a interim care order was made in May and I am of the view that proceedings under part 4 Children Act 1989 are the appropriate forum for deciding T's future care needs.


79. In Re P [2016] EWFC B2 (26^th January 2016), Her Honour Judge Redgrave gives a judgment in which she expressly disagrees with the decision of HHJ Bellamy in Re K. The facts of the case were similar in many ways. The child P had suffered significantly disrupted early attachments that had caused her to develop serious mental health problems. P was adopted but that adoption broke down as a result of the behaviour displayed by P. The local authority did not attribute any culpability to the parents for P suffering harm as a result of her behaviour but attributed the significant harm to P being beyond parental control. Upon the local authority applying to withdraw the proceedings, HHJ Redgrave was invited by the parents to determine whether threshold would have been met had the proceedings continued; the central issue being whether the section 31(2)(b)(ii) requirements were met on the facts as alleged by the local authority. It was argued by the parents that as P was exposing herself to significant harm as a result of her mental health problems, there was no evidence that this was in any way attributable to the fact that she was beyond parental control and, therefore, threshold was not satisfied.


80. At §15 of her judgment, HHJ Redgrave says:



"Under the Children and Young persons Act 1969 the courts had the power to remove a child from the care of his/her parents if it was satisfied that the child in question was beyond parental control. It was not necessary to show serious harm, or likelihood of harm. The Children Act 1989 changed the law and required harm/likelihood of harm to be proved and for it to be attributable to either the care given by the parents, or the child being beyond parental control. In my judgment the ordinary grammatical construction of the section requires the establishment of a causal connection by evidence, however slight. That is lacking in the documents filed in this case and with respect I cannot agree with Paragraph 149 of HHJ Bellamy's judgment in Re K (see above). Therefore I give the local authority permission to withdraw these proceedings on the basis that it is unlikely on the current evidence to be able to prove threshold.

There is no evidence of any kind that either the mother or the father are culpable in any way for the behaviour of their daughter and the harm she has suffered or is at risk of suffering in the future. They have fought tirelessly for her to receive the treatment she needs and in my judgment these proceedings should never have been issued."

81. In the decisions of both HHJ Bellamy and HHJ Redgrave, reliance is placed on the judgment of Lancashire County Council v B [2000] 1 FLR 583. Lord Nicholls said that,



'5. …the phrase "attributable to" in section 31(2)(b) connotes a causal connection between the harm or likelihood of harm on the one hand and the care or likely care or the child's being beyond parental control on the other…the connection need not be that of a sole or dominant or direct cause and effect; a contributory causal connection suffices.'

82. On receipt of Ms McCormick's written submissions suggesting that "there need not be a causal link between the parenting of a child and that child being beyond parental control for the purposes of section 31(2)(b)(ii), I alerted all advocates to Lancashire CC v B, Re K and Re P and invited them to consider the 3 decisions and make further oral submissions. Ms McCormick then modified her submissions and argued that if culpability was required, the conduct of M, as alleged by the local authority, provided a causal link between the harm suffered by T and him being beyond parental control. Ms Wordsworth took a fairly neutral stance as to whether a causal link was required, but she submitted that M's actions were those of a reasonable parent and therefore threshold was not satisfied on either section 31(2)(b)(i) or (ii).


83. It is clear that Lord Nicholls in Lancashire CC v B, took the view that there must be some contributory causal connection between the harm or likelihood of harm and the child being beyond parental control but, as Lord Nicholls says in the preceding paragraph of his judgment, he was commenting on a preliminary point that attracted little controversy between the parties. He did not address circumstances whereby a child's own behaviour, due to illness or impairment, is the cause for the child being exposed to harm and/or being beyond parental control.


84. In Re B (a Child) [2013] UKSC 33, Lord Wilson said, at §31:



"…there is no requisite mental element to accompany the actions or inactions which have caused, or are likely to cause, significant harm to the child. Section 31 (2)(b)(i) requires only that the harm or likelihood of harm should be "attributable" to the care given or likely to be given to the child not being what it would be reasonable to expect a parent to give to him. Such is a requirement only of causation as between the care and the harm.

The provision was prefigured in the White Paper, Cm 62, cited above, also at para 60:

"The court will also have to make a decision as to whether the harm was caused or will in future be caused by the child not receiving a reasonable standard of care or by the absence of adequate parental control. This is not intended to imply a judgment on the parent who may be doing his best but is still unable to provide a reasonable standard of care."

85. Lord Wilson was, of course, referring to section 31(2)(b)(i) but the section of the white paper referred to supports a conclusion that the connection between the harm caused and the child being beyond parental control was not to imply a judgment on the parent. Butler-Sloss LJ in Re L (a Minor) [1997] EWCA Civ 1268 was explicit in finding that it was immaterial whether the child was beyond parental control due to the fault of the parent or the child. In my judgment, the fault of the child has to include not just willful conduct by that child but also conduct demonstrated by the child as a result of a mental health or medical condition that leads the child to behave in a manner that exposes the child to significant harm.


86. Returning to the judgment of Lord Nicholls in Lancashire CC v B, the House of Lords was concerned with the impact of a non-parental carer on the ability of a local authority to satisfy threshold against a parent. Lord Nicholls said:



"In such a case, the phrase 'care given to the child' is apt to embrace not merely the care given by the parents or other primary carers; it is apt to embrace the care given by any of the carers. Some such meaning has to be given to the phrase if the unacceptable consequences already mentioned are to be avoided. This interpretation achieves that necessary result while, at the same time, encroaching to the minimum extent on the general principles underpinning section 31(2). Parliament seems not to have foreseen this particular problem. The courts must therefore apply the statutory language to the unforeseen situation in the manner which best gives effect to the purposes the legislation was enacted to achieve."

87. If I was to follow the reasoning adopted by HHJ Redgrave, a child who was suffering significant harm by reason of being beyond the control of the parent, but due to the characteristics of the child's illness or impairment and not for any lack of parental effort or ability, the child could not, if the parent objected, be removed to safe care as threshold would not be met.


88. The facts of T's case demonstrate the difficulty. M does not recognize that T is beyond her control. M has not been able to prevent T from exposing electrical wires, removing pipes from the boiler so as to cause the leakage of carbon monoxide or eating and smearing his own faeces. M has been unable to prevent T from removing his own clothes or been able to require him to dress when in company. T was, in my finding, beyond M's control. When undertaking all of these activities T has, in my finding, suffered significant harm or been likely to suffer significant harm.


89. I have found that M has minimized the difficulties that she has experienced in providing care for T. His actions arise as a result of his ASD and learning difficulty and Dr Singh has advised that any home carer would be unlikely to be able to meet his needs. If I was to accept that section 31(2)(b)(ii) was only activated if a child was beyond parental control by reason of some want of effort or ability by a parent rather than as a consequence of T's impairments, that would undermine the ability of any local authority to protect children without embarking on a finding of fault exercise that will, in many cases such as this, be an enquiry that the local authority will wish to avoid.


90. I have said repeatedly, during the course of this hearing, that caring for T must have been hugely challenging for M. It is impossible not to have sympathy and compassion for her given how T's behaviours developed in ways that M could not have predicted. I have made findings that M did not always accept and act on advice and those findings do, in my judgment, satisfy section 31(2)(b)(i) and I so find. However, in my judgment, it is important to recognize that section 31(1)(b)(ii) was intended to be a true 'no fault' limb of the threshold criteria. A child can expose itself to harm by reason of its own behaviour, whatever the cause for that behaviour, and the state needs to have the ability to intervene and protect such children from the harm they cause to themselves if they do not respond, or are unable to respond, to the attempts of their parents or carers to protect them. Therefore, it is necessary in my judgment to interpret the wording of section 31(2)(b)(ii) "in the manner which best gives effect to the purposes the legislation was enacted to achieve".


91. In my judgment it is immaterial whether a child is beyond parental control due to illness, impairment or for any other reason. The court simply has to consider if, on the facts, the child is beyond the control of the parent or carer. If that condition is satisfied, the court then has to determine if the child is suffering or is likely to suffer significant harm as a result of being beyond the control of the parent. If the answer to that 2^nd question is 'yes', then section 31(2)(b)(ii) threshold is, in my judgment satisfied.


92. I find, on the basis of the factual determinations I have made in the paragraphs above, as summarized in §87, that the threshold criteria under section 31(2)(b)(ii) are satisfied.



The Competing Proposals for T's Care



93. Having found the threshold criteria satisfied at the time the local authority issued its application, I must now consider and compare the proposals made by the local authority, and by M, to reach a determination as to what outcome will best meet T's needs for the rest of his minority. I have not be referred to any specific authorities but I have regard to the following general principles:



(a) T's welfare is my paramount consideration [section 1(1) Children Act 1989];

(b) Delay in reaching a decision for T is likely to be prejudicial to his welfare [section 1(2) Children Act 1989];

(c) Welfare is to be assessed through the prism of the welfare checklist in section 1(3) Children Act 1989;

(d) The advantages and disadvantages of the realistic options for T's future care should be assessed against each other in a comparative way so as to identify the best outcome for T [Re BS (Children) [2013] EWCA Civ 1146].

94. In assessing the local authorities plan for T, it is essential to consider the care that has been provided to T since the issue of these proceedings.


95. T remained subject to the shared care arrangements until Unit X was identified and agreed as the most appropriate unit to meet T's needs. A transition plan was prepared that placed responsibility on M to take T to X unit on 4 occasions prior to his moving. X unit is some 1.5 hour drive from when M is living. There has been some dispute between M, the local authority and the manager of X unit, JC, as to whether T attended for all 4 introductory sessions.


96. At the IRH on 4^th December 2017, M sought an order for disclosure of the complete daily records from X unit. I granted that order on the basis that M's advocate prepared a chronology of the relevant records and the records were paginated by the local authority and served in electronic format. Within those records, it appears that T only visited the unit on 2 occasions prior to his move whereas SW is sure that he attended on the 4 occasions set out in the transition plan. For reasons that I shall explain later concerning X unit's record keeping, I prefer the accuracy of the SW's recollection over the accuracy of X unit's recordings.


97. In addition to T visiting the unit, I was told that workers from the unit also visited T at school. A plan had to be devised as to what T would be told about his move and the school and SW agreed that T would be told that he was moving to a place for 'big boys'. T's first visit to X unit was on 18^th June 2017 and he moved there on 30^th June 2017, just 12 days later.


98. Dr Singh was asked about this transition plan as it is M's case that T has continued to demonstrate difficult behaviour since he has moved. Indeed, it is M's case that T's behaviour has deteriorated significantly since he moved and this is an indication that he misses his mother and would be better placed back in her care.


99. When Dr Singh gave oral evidence, he advised that T's behaviours at X unit, whilst not all new behaviours (with 1 significant exception), are likely to be responses to heightened anxiety. Dr Singh said he did not know the causes of the behaviours and could not say whether the anxiety was caused by T missing M or anxiety caused by the change of care arrangements by the general upheaval of the move to X unit. It was Dr Singh's evidence that T's level of impairment will extend the period of time needed for him to become accustomed to his new environment and begin to settle. He was unable to say how long this would take but said the length of time would also depend on the level of support T receives and the understanding of those working with T so staff are able to assist in reducing T's anxiety levels. It was Dr Singh's advice that he thought the transition plan was too quick given T's difficulties in adjusting to change.


100. Concerning T's difficult behaviours at X unit, that I shall describe shortly, it was Dr Singh's evidence that information has to be conveyed to T in small chunks and in a format that he can process and understand. He said that when there is a behaviour that needs to decrease and an intervention is provided but not working, the intervention needs to be attempted in a different way. Dr Singh accepted that T's behaviour would demonstrate that he would become anxious when M left contact sessions at the unit but he said that there may well be other reasons why T is becoming anxious at this time and it was also Dr Singh's view that T signaling that he wanted contact to end may well be a positive step forward for T, as he is recognizing that his anxiety is increasing and he had learned to remove himself and end contact as a method of managing that anxiety.


101. M's contact with T has been weekly. As M has been working, contact has taken place at weekends and the length of the contact visits is determine by T's reaction to contact and to M's presence. It is agreed by all parties that T loves M and has a very good bond with her. He enjoys her visits and looks forward to them. There was a time when T was permitted by X unit to wait by the gate for M to arrive, a practice that had to end when T was able to escape from the grounds. M's contact with T has been confined to the grounds of X unit whereas, when T lived with M, she says she was able to take T out in the community without him stripping off his clothes. Since T's move to X unit, his preference for being naked has continued and he will remove and shred the clothes that he is wearing. Staff try to preserve T's dignity by covering him with blankets but, on the evidence that I have heard, they have had limited success in keeping T in clothing anywhere other than in the classroom.


102. As a result of X unit's fear that T will remove his clothes in public places and, put himself at risk by running into the road, X unit have been taking T out for drives in a car but have not been permitting him to leave the car. M very much wants T to be able to enjoy an 'outside life'. She told me that T has lots of energy that he needs to burn-off and that she would take him out so that he could let off steam. M told me that she would deliberately take T out to the park in the rain as this was a time when other children were unlikely to be there and this would allow T the freedom to enjoy the outside space without the complications caused by T encountering other children.


103. At the IRH, I expressed my view that it cannot be difficult for X unit to identify an area where T can enjoy time outdoors and that is remote enough to reduce the risk of him encountering others. I am told that T has 2:1 care and, presumably a driver, when he is taken out. I expressed to JC when she gave her evidence that it is extremely disappointing that, in the weeks between the IRH and the commencement of the final hearing, T has still not been let out of the car when away from the unit. JC told me that a location had not been identified where the unit felt was appropriate for T to be allowed to 'run'. In my judgment, M's complaints that X unit are not promoting T's ability to interact with the outside world are justified.


104. Before I heard evidence from the manager of X unit, JC, I had read the statement provided by her, following a review meeting of T's progress at X unit that was held on 8 December 2017. This statement describes that T is still very active in destroying the environment where he lives and there have had to be many adaptations to the flat he now occupies. M has described it as sparse and unhomely. I am sure that description is correct as, if anything is left within T's reach, he will try to dismantle it.


105. The written evidence from X unit states "T continually pushes staff out of his flat and attempts to keep them out of his flat so he can cause damage when not supervised". When JC gave her oral evidence, she described that the unit does not intervene when T is destroying property as they will only restrain T if he is a danger to himself or to others. On the evidence that I have heard, T is able to destroy whatever he can get his hands on and there has been little, if any progress, in modifying this behaviour. If he shreds his clothes, it appears that they are replaced until he shreds them again. If he destroys his bed, mattress or other furniture, more robust replacements are provided in the hope that he will have less success in pulling the new item to pieces. M argues that the continuation and, she says, escalation of T's destructive behaviour is a sign of his distress at being separated from M. I do not accept that what has been described to me is a marked increase in destructive behaviour. This is some thing that T has done for some time. Dr Singh was not sure whether these behaviours meet a sensory need, in that the feel of the clothes T is tearing or the activity of dismantling an object is of itself stimulating for T. Dr Singh expressed a similar view about T's smearing of faeces. Dr Singh was unable to accept that the behaviours could only be due to T missing his mother. He thought there could be many reasons that are together causing the behaviours that the unit has experienced. Given that staff at X unit do not intervene to stop the destruction that T enjoys it is perhaps unsurprising that it is occurring on such a regular basis.


106. What is of most concern, in my judgment, is the absence of adequate supervision of T at X unit. It had been my understanding that T was supervised by 2 members of staff during the day and by 1 member of staff during the night. Upon Ms Wordsworth examining the running logs prepared by staff, it became clear that this was not the case and that T is often left unsupervised for periods in excess of 1 hour.


107. This has, in my judgment, had serious consequences as T was left unsupervised for long enough for him to pull out toes nails from his right toes on 14^th August 2017. This injury was seen by staff at 13.00 but it appears he was then again left unsupervised. By 17.30 he had pulled out another toe nail. When I asked JC how it could be that a child in her care would display an entirely new self-harming behaviour and, it would appear from the recordings, receive no medical attention and no increase in supervision to ensure that the behaviour was not repeated, JC had no answer to give. JC accepted that she had not made enquiries as to how this happened. She then said that T could became aggressive if staff did not leave his flat when he indicated that he wanted them to leave and her final answer was that she did not know if staff realized the consequences of what he was doing.


108. When looking at this one issue of self-harm by the removal of toenails, it first occurred on 12^th August. On 14^th August 2 and then 3 more nails were seen to be missing. On 15^th August 3 additional toenails were missing. In a kardex recording from 16^th August 2017, it is recorded that the staff on duty noticed that T's toe nails were missing. It is noted that T appeared to be in pain and the toes themselves looked sore. T moved away from staff when they tried to apply first aid or encourage him to clean the injured toes in the bath or the shower.


109. It is completely unacceptable that staff who were caring for T on 16^th August 2017 had not been notified of the new self harming behaviour that had been seen on 12^th, 14^th and 15^th August. It is equally unacceptable that it appears that the first active attempt to provide T with medical care did not occur until 16^th August and it was not until 18^th August that it appears that pain relief was provided to T as he remained in obvious pain as a result of removing all but 2 of his toenails.


110. When asked about the record keeping of staff members and the periods of up to 1 hr and 20 minutes when the records indicate that T was unobserved, JC thought it very unlikely that T would have been left alone for such long periods even though the records would indicate that this was not an infrequent occurrence. That answer by JC leads me to conclude that not all interactions with T are noted, the Kardex records are likely to be incomplete and are therefore, an unreliable account of the detail of T's daily activities and provision of care.


111. M has further complaints that she raises against X unit. The impression given to Dr Singh when he attended X unit was that T was settling and making improvements. The impression given in notes of the review meeting held on 8^th December 2017, received shortly before the commencement of the trial, was that progress had been slow. It is recorded that "T engages in different self-harming behaviours when he is particularly anxious and his arousal levels are significantly higher, this includes biting himself on his knees, pulling out his hair and throwing his body hard against walls and floors. T's faeces has also contained inedible objects so all activity resources given to him require close monitoring."


112. In her oral evidence, JC said that as T has become more and more challenging, staff at X unit have had to move forward in different ways. She described that they have reduced the staff team down, as it is their usual practice to have a staff member who is familiar to T with him at all times and then have another staff member to learn from familiar staff.


113. JC said that they have reduced the staff team down further more recently but this has been difficult, as some members of staff do not want to work with T due to his aggression. JC said that T changes his behaviour as staff change things. She said he then changes his behaviours again and some of the behaviours are more intense. JC said that T's anxious behaviours have not abated in his time at X unit.


114. JC disputed that T was not settling as staff have built relationship with him. She said he will sit with staff and receive affection. However, she accepted that there was no thought given to specific strategies that could be employed with T, given that he had been in the care of M for 12 years and his move to X unit was his first time away from her care on a week to week basis.


115. When asked about M's contact, JC accepted that there were only 2 occasions when T had signed to M that he wanted her to leave early, a request that M respected. JC accepted that there were times when T would ask for M and would ask when he would be seeing M. Ms Wordsworth put references to JC that demonstrated that staff at X unit were not always honest with T when answering his questions about M. Dr Singh accepted that children with ASD can ask the same question repeatedly and that it is acceptable to distract them to another topic. However, it is clear from the references put by Ms Wordsworth that staff were actually lying to T, the most obvious example being, when T asked when he would see M, the staff member told him 'shower first'. When JC was asked how T could learn to trust staff if he was lied to on important matters such as when he would see M, JC said she did not know.


116. JC told the court that the unit had not identified any specific triggers for T's behaviour. She said his behaviour can change very rapidly but once he has started a task, usually a destructive one, he will insist on finishing it. I was also told of an 'operational review meeting' that was held on 1^st November 2017, during which it was decided that managing T was becoming more difficult, that staff would need to impose themselves more within T's environment and make more demands upon him. JC said that there is a psychologist that is based at the unit who was fully aware of the concerns of staff and involved in decision-making concerning T's care. Given the evidence heard from Dr Singh that strategies have to be revisited if they are not working, it is perhaps surprising that it had taken 5 months before a change of approach has been recommended, although I accept that it was necessary for them to have been some delay due to the need to establish whether T's anxiety related behaviours would reduce by him becoming familiar with his new living environment.


117. What is positive, is that T's engagement with the educational provision at school appears to be good, as was his engagement with school when living with M.


118. The Guardian [CG] joins with M in expressing concerns about the care provided by X unit. CG visited X unit to speak with staff providing care for T but, sensibly in my judgment, decided not to meet with T given the number of professionals involved with him and his communication difficulties. CG supports the making of a care order but she is very supportive of T's ongoing relationship with M, who CG says has not received a level of communication from X unit that is adequate. There have been meetings held that have gone ahead without M receiving an invitation and decisions made that should not have been made without M's active involvement. For the sake of brevity, I do not propose in this judgment to specify how X unit have failed to adequately communicate with M. If T is to remain in the care of the local authority and reside at X unit, it will be the responsibility of the local authority to ensure that there is a clear system in place for a free-flow of information between those providing care for T and his mother.


119. CG described the staff at X unit as 'risk averse' and recommended that the local authority take steps to ensure that T is able to enjoy time outside, not just at the unit but out in the countryside. CG was also concerned to hear of the injuries that T had suffered whilst at X unit and said she was 'incensed' by how he had been permitted to pull out so many toenails. Despite her concerns, it was CG's recommendation that a care order be made as, in her opinion, for T to be cared for at home there would need to be confidence that M would work openly and honestly with professionals and, in the view of CG, the evidence was overwhelming that M had not done so in the past. CG described that M has no support network of friends and family so she would be entirely reliant on professional support, support that M has previously not engaged with.


120. M's plan is that T be returned to her care and that the local authority provide a few hours support after T's return from school so that M is able prepare meals for T in the evening. M would also welcome overnight staff at her home so that T has supervision throughout the night when she is working. During the course of her oral evidence she modified her plan to dispense with the need for assistance immediately after school on the basis that M would prepare meals during the day, so that she is able to be with T when he returns from a day at school. M is currently studying part time and would require some hours of support to ensure that she could continue with her studies. M said that she would accept any support that is offered, or that the court thought she required, to enable T to be returned to her care.


121. The local authority plan is that T should remain at X unit. In her oral evidence, SW recognized the seriousness of the criticisms made by M of the some of the aspects of the care provided to T at X unit but she remained of the view that M was unable to manage T's complex needs. It is SW's view that T's needs could only be met in a multidisciplinary environment, particularly as T is likely to become more difficult to manage as he matures through adolescence. SW gave assurances that she would actively require X unit to take T out on trips and identify locations where X shall be allowed out of the car. It was also SW's view that M's contact with T should be unrestricted in terms of the number of hours, so long as she respected T's wish for contact to end should he so indicate. SW was content for M to leave the unit with T so long as they were accompanied by unit staff and she was happy for M to visit more frequently than once each week, if M was able to afford the cost of the extra visits herself.


122. SW shared the courts concern that T was not being supervised in the manner that the parties had been led to believe and accepted that she would need to provide clear expectations to X unit to ensure that T is not again left to cause himself such painful injuries. It was SW's evidence that all other options for T's care had been tried and M was and remains unable to manage T's needs. It was SW's evidence that residential care at X unit was the best option for T.


123. Dr Singh was sent M's most recent statement in which she sets out her proposals for T's care. He was concerned that there would have to be an attempt to replicate the package provided to T at X unit in the community and that package would have to take into account M's own limitations. Dr Singh doubted that services would coordinate sufficiently well in the community to meet T's needs and if there was any lack of cooperation by M, T would suffer. Dr Singh was of the opinion that it would definitely become more difficult for M to manage T's needs as he matures and he doubted M's ability to manage T as a teenager. Dr Singh did not, in his oral evidence, alter the opinions he expressed in his written evidence that T's needs are best met in specialist residential care.





Discussion and Decision Concerning Placement



124. T was in the care of his mother from birth until he moved to X unit on 30^th June 2017. M is committed to T and he is closely bonded to her. This is not a case where it is proposed that there be a legal severing of family ties between T and M but the care plan proposed by the local authority represents a significant interference with the family life of T and of M. If I am to approve the local authority plan I have to be satisfied that the interference is necessary and proportionate to the legitimate aim of protecting T's welfare.


125. There are significant disadvantages to the local authority's plan. X unit is some 1.5 hours away from M's home. M is working and studying so her visits to T are currently limited to once each week, although the local authority had no objection to more frequent visits. T asks for M at times that she is not present and it is difficult, due to T's impairments, for him to understand when he will next be seeing his mother, especially if staff do not provide him with accurate information. T is no longer living with M so is likely to lose that familiarity that can only be maintained between parent and child when they occupy the same living space and share the same routines. In my judgment, M's presence has been a consistent feature, if not the only consistent feature, of T's and a loss of familiarity with his mother is, in my judgment, a significant disadvantage of the plan proposed by the local authority. This mother knows her son better than anyone. She has learned over the years she has cared for him what his movements and noises mean. I am entirely satisfied that nobody can communicate with T as easily as M and that T cannot communicate with any other person as freely as he can with his mother.


126. The advantages of the local authority plan are that T will be surrounded by a team of professionals who have the necessary training and skills to meet his needs as he matures and as the requirements of his care become more demanding. I have already identified some of the difficulties that X unit have had in managing T but I accept the evidence of Dr Singh that a child with such complex needs as T will take time to settle and changes of strategies will be necessary as staff get to know T and respond to his changing needs as he develops. Caring for a young person such as T is a 24/7 task and I accept the evidence of Dr Singh that the demands are such that services are unlikely to be able to meet T's needs in the community, even if M were now able to cooperate will all that might be offered. The local authority's plan provides T with a placement where there are the skills, staff numbers and resources that are, in my judgment, necessary to meet all of T's complex needs.


127. The main advantage of T being placed with M is that he will be able to regain and maintain that sense of familiarity with his parent that can only, in my judgment, be maintained by living under the same roof. However, the disadvantages to T of a return to M's care are that he will be exposed to the harm and risk of harm that I have already found him to have suffered. I have concluded that T was beyond M's control when aged 12. He is now further into puberty and growing in physical strength. He needs consistency and predictability in his care and he needs 24-hour supervision to ensure that he does not cause himself harm. I have found that M has not been honest with the court concerning past events. I have found that M has minimized the real difficulties that she faced in providing care for T and I do not have confidence that M will be able to manage T's needs in the future. In my judgment, were T to be returned to M's care, even with a well resourced package of support, he would again suffer significant harm as his needs are just to great to be met in a home environment by a mother who cannot always be relied upon to act on the advice that she is given.


128. There being no other realistic options before the court, and having treated T's welfare as my paramount consideration and considered all the matters set out in the welfare checklist, I am entirely satisfied that making a care order is a proportionate interference with the article 8 rights of T and of M, it being the only order that I can make that will protect T from suffering further harm.


129. Before making a care order I need to scrutinize the terms of the care plan proposed by the local authority. Section 31(3A) Children Act 1989 provides:



(3A) A court deciding whether to make a care order—

(a) is required to consider the permanence provisions of the section 31A plan for the child concerned, but

(b) is not required to consider the remainder of the section 31A plan, subject to section 34(11).

(3B) For the purposes of subsection (3A), the permanence provisions of a section 31A plan are such of the plan's provisions setting out the long-term plan for the upbringing of the child concerned as provide for any of the following—

(a) the child to live with any parent of the child's or with any other member of, or any friend of, the child's family;

(b) adoption;

(c) long-term care not within paragraph (a) or (b).

130. Section 34(11) Children Act 1989 provides:



Before making, varying or discharging an order under this section or making a care order with respect to any child the court shall—

(a) consider the arrangements which the authority have made, or propose to make, for affording any person contact with a child to whom this section applies; and

(b) invite the parties to the proceedings to comment on those arrangements.

131. Given that there are a number of applications before me under the inherent jurisdiction of the High Court, the grant or refusal of which will have a direct impact on the care to be provided to T under the terms of the local authority care plan, in my judgment I must consider and determine those applications before any final consideration of the terms of the care plan.



Deprivation of T's Liberty at X unit.



132. As I said in the introductory paragraphs of this judgment, all parties agree that the care provided to T at X unit involves a deprivation of his liberty within the meaning of the case known as Cheshire West, the full citation being Surrey County Council v P and others; Cheshire West and Chester council v P and another [2014] UKSC 19.


133. As I have described above, it is necessary, in order to keep T safe, to confine T to locked areas within X unit, to prevent him for leaving the buildings and to prevent him from leaving the grounds. I have seen a restraint log that details the limited occasions that it has been necessary to restrain T to prevent him causing harm to himself or to others.


134. I am satisfied from the papers I have read and the oral evidence that I have heard that these restrictions are necessary to promote T's welfare and protect him from harm.


135. The local authority has applied for a declaration authorizing it to deprive T of his liberty, in so far as it is necessary for the purposes of the care provided at X unit. If I were to grant such a declaration, it would be a permissive order authorizing the local authority to deprive T of his liberty but only in so far as that deprivation remains necessary.


136. An interim authorization was granted by Her Honour Judge Anderson siting as a Judge of the High Court on 8^th September 2017. At the commencement of this hearing on 18^th December 2017, I granted permission to the local authority to apply to invoke the inherent jurisdiction of the High Court, there being no other remedy available to the local authority, X unit not being registered under Regulation 3 of the Children's Secure Accommodation Regulations 1991, and, I am satisfied that there is reasonable cause to believe that T would suffer significant harm if the court's inherent jurisdiction was not exercised.


137. I have been referred to the decision of the Honourable Mr Justice Keehan in AB (A Child: Deprivation of Liberty) [2015] EWHC 3125 (Fam).


138. I have also considered the judgment of the President in Re D (A Child) [2017] EWCA Civ 1695. At §109, Munby P says:



"I should, for the sake of completeness, refer to [Keehan J's] intervening judgment in In re AB (A Child) (Deprivation of Liberty: Consent) [2015] EWHC 3125 (Fam), [2016] 1 WLR 1160. This concerned a 14-year old boy, subject to an interim care order, who had been placed in a residential children's home in circumstances which Keehan J found met Storck component (a). The question was whether, given the existence of the interim care order, either the parents or the local authority was entitled to consent for the purposes of Storck component (b). Keehan J held that they were not. That, as will be appreciated, is not an issue before us on this appeal. "

139. Given that appeal decision in Re D did not affect the judgment given in Re AB, that decision remains good law. At § 29 of his judgment in Re AB, Keehan J stated:



"Where a child is in the care of a local authority and subject to an interim care, or a care, order, may the local authority in the exercise of its statutory parental responsibility (see s.33(3)(a) of the Children Act 1989) consent to what would otherwise amount to a deprivation of liberty?  The answer, in my judgment, is an emphatic "no".  In taking a child into care and instituting care proceedings, the local authority is acting as an organ of the state.  To permit a local authority in such circumstances to consent to the deprivation of liberty of a child would (1) breach Article 5 of the Convention, which provides "no one should be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law", (2) would not afford the "proper safeguards which will secure the legal justifications for the constraints under which they are made out", and (3) would not meet the need for a periodic independent check on whether the arrangements made for them are in their best interests (per Lady Hale in Cheshire West at paragraphs 56 and 57)".  

140. No party has sought to argue before me that the local authority can give consent to T's deprivation of liberty at X unit and there is no dispute between the parties that, in the event that I approve the care plan and make a care order, a declaration authorizing the deprivation of T's liberty is required. In the absence of such a declaration, T's continued placement at X unit would be unlawful and in breach of article 5 ECHR. As set out by Keehan J at §34 of Re AB "The local authority, as a public body is required by s.6 of the Human Rights Act 1998 not to act in a way which is incompatible with a Convention right".


141. In the absence of this court making the declaration sought, T would have to move to a care environment with a less restrictive regime that would not involve the control of his movements and freedoms that I have found are required to keep him safe and promote his wellbeing. In my judgment, if T were to move to an alternative establishment with a less restrictive regime he is likely to suffer significant harm. In all the circumstances I am satisfied that I should authorize the deprivation of T's liberty at X unit.


142. I have heard submissions concerning the review process that the court should undertake to ensure that the authorization provided remains necessary. It is common ground that the review process needs to be independent of the local authority as only the court can review the need for its own order to continue. There is dispute between the parties as to when the first review should take place. The local authority seeks an order limiting the period of T's deprivation of liberty [DOL] to 12 months and then there would be a responsibility on the local authority to apply for a further order, should it consider that a further authorization was required. The Guardian proposes a review period within 6 months, due to T currently passing through puberty and being likely to experience significant developmental change in the next 6 months. The Guardian, like M, links the timing of any review to the results of the other applications I have yet to determine. I shall, therefore, consider those applications prior to determining when there should be a review of the DOL authorization.



M's Application for Additional Declarations



143. In her closing written submissions, Ms Wordsworth invites the court to make "best interests declarations" providing that:



(a) T should leave the grounds of X unit at least once each week;

(b) T be permitted to leave the vehicle when taking the trips referred to in (a) above, and

(c) M be permitted to attend such trips with T.

144. M also seeks an imposition of a date by when the first such trip is to take place and to fix a review hearing soon after the commencement of these outings to consider their success.


145. During the course of the oral evidence of JC, I made it clear to JC that the court was very disappointed that X unit had failed to facilitate an excursion for T between the date of the IRH and the final hearing. My disappointment was mirrored by SW and by CG. During the course of submissions I raised with Ms McCormick on behalf of the local authority whether it would be prepared to amend the terms of the care plan to provide for the matters raised in §142(a) to (b) above. I was assured by Ms McCormick that the local authority would make those amendments, and having heard SW's oral evidence, I am entirely satisfied that she will take action to ensure that T is able to enjoy trips out of the unit with M.


146. Given my confidence in SW, I see no purpose in making the declarations sought on behalf of M and the application is refused. In my judgment, the arrangements for T's care, including the arrangements for his visits into the community with or without his mother, should properly be recorded in his care plan. I also take the view that T's needs are very likely to change and any declaration I may make today could, in the very near future, no longer reflect what would be in T's best interests. Arrangements for contact and T's participation in community trips such as those sought by M should and will be set out in an amended care plan and will form the subject of discussion during looked after child meetings within the normal process that is managed by the local authority following the making of a care order.


147. Ms Wordsworth has argued that declarations such as those she seeks can properly be made by the court in defining the manner in which T's liberty may and may not be restricted. As I have already indicated, the authorization given to the local authority is permissive and only to be utilized, prior to the next review, when such restrictions are needed. I have heard evidence that T's presentation can vary from day to day and can change at short notice. It may be that it will be necessary to restrict T's liberty one day and prevent him from leaving the grounds of the unit but be inappropriate the following day if T's has recovered sufficient predictability in his behaviour to enjoy a day out. In my judgment, the grant of declarations concerning such trips has the capacity to cause confusion and could be harmful to T by creating expectations that might not then be met. In my judgment, decisions need to be left to those providing day to day care for T, with the overall supervision of T's very capable social worker.



Does the Local Authority require the authorization of the Court for Risperidone and Melatonin to be administered to T?



148. In her oral evidence, CG told me that she knew in August 2017 that the psychiatrist responsible for T's care at X unit had recommended that T be prescribed risperidone (an antipsychotic) and melatonin (a sleep aid). CG visited M on 1^st September and shared with M that these medications had been recommended. As I understand the evidence, T's GP has prescribed these drugs but they have not been given to T due to M's opposition. The Guardian also informed the court that X unit should discuss with M the reasons why these drugs had been prescribed. It is agreed by all parties that there was no discussion with M or with SW before the psychiatrist recommended that these drugs be prescribed.


149. The local authority has tried to make contact with the psychiatrist responsible for the recommendations but I have been told that he visits the unit just once each month and has not responded to the communications sent to him by the local authority. I have not received any evidence from him, either in written or oral form.


150. In her closing written submissions, Ms Wordsworth argues that the reference to the use of risperidone in T's records coincides with an upsurge in T's destructive behaviour. Ms Wordsworth submits that it is the damage to X unit property that has led to the desire to medicate T and not a desire to manage T's anxiety, as if this was the motivation the medication would have been suggested when T removed his toenails.


151. Dr Singh was asked specific written questions about the use of risperidone and melatonin. His response was that the questions should be put to T's treating psychiatrist. Given that this has not been possible, Dr Singh was asked further questions about these drugs when he gave his oral evidence. I can summarise his evidence as follows:



(a) Risperidone is an 'atypical' antipsychotic. 'Atypical' means a newer, 2^nd generation medication.

(b) Risperidone is licensed for use in ASD behavioural management. It has anti anxiety properties but it should not be used as the first line intervention and non-drug strategies should be tried first.

(c) Risperidone is a useful 'add-on' so that a child can engage better with the non-drug strategies being tried.

(d) Dr Singh did not know the reasons why the psychiatrist at X unit had agreed to prescribe the drug after T had been at X unit for 8 weeks. Dr Singh was neither critical nor supportive of this decision.

(e) Dr Singh accepted that risperidone has a sedative effect.

(f) Dr Singh advised that risperidone should only be used in specialist units, as its effects have to be closely monitored. The risks of the sedative side effects have to be weighed against the benefits.

(g) Risperidone can be administered as an oral liquid or a tablet.

(h) Dr Singh would expect to see a clear written plan describing the goals to be achieved by prescribing the medication and setting the expected clinical outcomes.

(i) The use of risperidone can have an impact on a child's learning ability because it can cause drowsiness.

(j) The use of risperidone needs to be closely monitored, as the sedative effect can be the cause of a reduction in challenging behaviour rather than behaviour changing due the drug helping with anxiety levels.

(k) The medication should be started at the lowest dose and not increased without having the progress monitored and a full review should be undertaken before any increase is prescribed.

(l) There is a whole range of side effects for all medications. Even if one person has experienced a side effect, it has to be listed as a possibility for others. We will only know if a person will experience side effects by them taking the drug.

(m) Any indication of a side effect from the use of risperidone should prompt a review of its use and a decision should be taken as to whether the side effect is transient and will wear off or whether the side effect is causing more harm than the benefit provided by the use of the drug.

(n) Melatonin should only be tried once sleep hygiene interventions have been attempted.

(o) Adverse reactions to melatonin can include headaches, light-headedness, dizziness, dreams when sleeping and nausea.

(p) Most side effects are transient so the advice normally given is to persevere.

(q) The use of melatonin should be closely monitored.

(r) Side effects with the use of melatonin are uncommon.

(s) Melatonin is most commonly prescribed for people over 55 but is also routinely prescribed for children with autism.

(t) Both risperidone and melatonin are commonly used with autistic children but should not be used prior non-drug therapies.

(u) There is an alternative antipsychotic drug to risperidone that is used with autistic children but it has a similar side effect profile and there is no alternative medication that can help with anxiety.

152. When I heard evidence from JC of X unit, she said that the unit has a multi disciplinary approach and the introduction of medications recommended by the psychiatrist help the child access the other strategies attempted at the unit. She said that medication is used for the shortest possible time and reviewed on a monthly to 6 weekly basis. JC said that the use of risperidone varies between patients but medications tend to reduce after puberty but can extend into adulthood. JC described that the unit psychologist manages the clinical team and there are clinical team meetings on a weekly basis. It was JC's evidence that both the psychologist and the psychiatrist are supportive of T being prescribed risperidone to assist in managing his anxiety, so that he has a better chance of access the behaviour strategies employed at the unit to manage his own behaviour.


153. In the report for the X unit meeting held on 8^th December 2017, I take the following:



"Due to the significant levels of T's anxiety it is difficult for him to access and benefit from the various psycho social interventions as detailed above. With this in mind, the role of medication is seen as a short-term intervention to reduce anxiety to a point where T will be able to benefit from the strategies being implemented. lt is the aim that the medication would be gradually reduced as appropriate. The Consultant Psychiatrist for X unit has recommended that T take Risperidone; this works by changing the activity of chemicals in the brain called neurotransmitters and will affect his mood and psychological behaviour. The aim is that T will be more receptive to the strategies that are being implemented, enabling these to be more successful for him. It is X unit's policy to ensure that best practice is followed in all matters. With regard to medication, it is expected that our visiting psychiatrist would follow appropriate NICE (National lnstitute for Health and Care Excellence) guidelines". The relevant sections of the NICE guidelines have been reproduced within the report.

154. M opposes the administration of these medications. As I have explained in earlier paragraphs, M has a history of opposing the use of drug therapies in managing T's needs. She opposed the allocation of a named paediatrician due to her fear that medication would be prescribed and she refused to accept sleep aid medication for T on the basis of the use of cherry juice, which in my finding she did not then provide. It is M's fear that T's inability to communicate with words how he is feeling, will result in him suffering side effects that he cannot describe. M believes that T is now sleeping better and no longer needs melatonin and, even if he did, it is her experience that T gets to sleep easily but wakes in the night. M says that a paediatrician, who M has not named, said that melatonin will not assist T as it will not keep him asleep.


155. One of M's main complaints is that she was not consulted by the psychiatrist before the recommendation was made that these drugs be prescribed. M also says that she is unable to make an informed decision as to whether either drug would assist T as she had not had the opportunity to speak to anyone, particularly the unit psychiatrist, concerning the risk and benefits of these drugs. I remind myself that CG told the court that she informed M on 1^st September that the unit was recommending the use of these drugs. It is accepted by M that since that time she has taken no steps of her own to discuss these drugs with staff at the unit, or it seems, with any other medical practitioner.


156. I am concerned that these drugs have been recommended by a psychiatrist attached to a specialist unit as their use has been assessed as likely to assist T to manage his anxiety, learn new strategies to manage himself, thereby improving his behaviour and widening the 'world' to which he will have access. Given T's advancing years it is, in my judgment, essential that he be assisted to learn acceptable behaviours and how to manage himself in the wider world. In the absence of the development of these skills, T's world will remain small. He will remain largely confined within institutions and he will not reach his full potential, whatever that potential may be.


157. These drugs were recommended for use in August 2017. If they would be of benefit to T, T has been denied of that benefit for 5 months. Conversely, if they would be harmful for T, he has been spared that harm for that same 5-month period.


158. The dispute between the parties is not whether T should immediately be administered both medications. It is the view of SW that she wishes to have discussions with T's psychiatrist concerning the treatment goals that Dr Singh advised should be part of the plan and have more information as to why the medication has been recommended, how it will be monitored and what will be the format of the review.


159. At the conclusion of the oral evidence, I indicated that I would not make a decision as to whether either drug should be administered to T, in the absence of hearing evidence from T's treating psychiatrist concerning those same matters that are of concern to SW.


160. However, the issue that I have to determine today is whether authorizing the administration of these medications is a matter for the court or whether, once a care order is made, it is a decision that properly falls to the local authority in the exercise of the parental responsibility it will hold pursuant to section 33(3) Children Act 1989.


161. It is M's case that the potential side effects of the use of both medications are so grave that, following the reasoning of MacDonald J in Re SL (Permission to Vaccinate) [2017] EWHC 125 (fam), it is not appropriate for the local authority to override M's wishes by giving its consent under section 33(3) Children Act 1989. It is M's case that the local authority requires a declaration authorizing the administration of these medications prior to either drug being given to T.


162. At the commencement of the hearing, it was CG's case that the administration of medication was a matter for the doctors treating T and that the local authority could give consent if a care order was granted. Having heard the oral evidence of Dr Singh, JC and M, CG is now of the view that the side effects of risperidone are potentially so grave, that it is inappropriate for the local authority to give consent and an authorization from the court is required.


163. On behalf of CG, it is submitted that melatonin is a drug of an entirely different nature to risperidone and could be authorized by the local authority. CG would like SW to be assured that its use is appropriate, particularly in combination with risperidone, before giving consent to its administration.


164. The local authority submits that the administration of medication is a matter that properly falls with the overarching parental responsibility it will hold upon the making of a care order. It is submitted by the local authority that it does not need the authorization of the court and it has not issued an application seeking a declaration.


165. I am therefore dealing with a preliminary legal issue. If I determine that it would be inappropriate for the local authority to give consent, the local authority will have to reconsider its position and I will give directions for the provision of further evidence and fix a date for the determination of any application that is made. If I determine that the administration of these medications is a matter upon which the local authority can properly override the will of the mother, then what happens next concerning the use of these drugs will be a matter for social work team, who would I am sure, will involve M in the decision making process but the ultimate decision would be a matter for the local authority.



The Legal Principles Applicable to the exercise by a Local Authority of Over-Arching Parental Responsibility.



166. Section 33(3) of the Children Act 1989 states:



While a care order is in force with respect to a child, the local authority designated by the order shall—

(a) have parental responsibility for the child; and

(b) have the power (subject to the following provisions of this section) to determine the extent to which —

(i) a parent, guardian or special guardian of the child; or

(ii) a person who by virtue of section 4A has parental responsibility for the child,

may meet his parental responsibility for him.

167. Section 33(4) states:



The authority may not exercise the power in subsection (3)(b) unless they are satisfied that it is necessary to do so in order to safeguard or promote the child's welfare.

168. Sections 33(6) and 33(7) define actions that may not been taken when a care order is in force. These prevent a local authority from causing a child to be brought up in a different religion, agreeing to the making of an adoption order or appointing a guardian for a child. A child cannot be removed from the UK or be known by a new surname without the grant of consent by all persons holding parental responsibility or order of the court.


169. In the SL case before MacDonald J, it was conceded on behalf of the local authority and the child, that a declaration by the court was required before the subject child could be vaccinated. At §23 of the judgment, MacDonald J states "As does the local authority, on behalf of SL Mr Tughan QC and Ms Piccos recognise that a parent is, ordinarily, accorded a significant degree of autonomy by the state in deciding in the exercise of their parental responsibility whether to vaccinate a child. However, in circumstances where there is a dispute between those holding parental responsibility for SL (namely, the mother and the local authority) … the court is required to determine that dispute by reference to SL's best interests.."


170. At §32, MacDonald J determined that "given the gravity of the issue in dispute, it is not appropriate for the local authority simply to give its consent to immunization pursuant to the provisions of s 33(3) of the Children Act 1989 on the basis of its shared parental responsibility for SL under the interim care order".


171. It is not clear from the judgment of MacDonald J what argument was heard, if any, as to why the vaccination was such a 'grave matter' that it was inappropriate for the local authority to override the views of parent, there be a deliberate inequality in the sharing of parental responsibility between the local authority and a parent under section 33(3) whereas between 2 parents the sharing is equal.


172. The case of In Re A, B, C and D (Welfare of Children : Immunisation) [2011] involved care proceedings where it was clear during the early stages that the parents did not consent to the children receiving certain immunisations. It was decided during the proceedings that a decision as to whether immunisations should be administered would be made following the conclusion of the care proceedings. The reasoning for this being expressed as by Theis J at §8 as "Obviously each case will turn on its own facts, but if there is a dispute between the LA and the parents as to this aspect, and there is no pressing medical need for the issue to be determined earlier, it would be more appropriate for the issue to be determined (if still required) after the final hearing. This is obviously because in the event of the children going home and parental responsibility not being shared by the parents with the LA there is no need for the court to determine the issue, unless the parents disagree". In that case it also appears to have been accepted by the local authority that the nature of the dispute was such that it would be inappropriate for the local authority to use its overarching parental responsibility to override the view of the parent.


173. There are numerous authorities concerning the legal principles to be applied to urgent lifesaving or life limiting treatment but there appears to be an absence of authority concerning what a local authority may or may not do pursuant to section 33(3) Children Act 1989 when medical treatment or any other decision to be made is of a more 'every day' nature.


174. In the case of C (Children) [2016] EWCA Civ 374, the court of appeal considered whether it was an appropriate use of the overarching parental responsibility granted by section 33(3) Children Act 1989 for the local authority to prevent a parent registering her children with names of her own choosing. At §22, King LJ framed the issues for the appeal as



"i) Are either or both of the naming of a child and registration of a child's birth and the entry onto the register of a child's name under the Births and Deaths Registration Act 1953 (BDRA 1953) acts of parental responsibility?
ii) If  the naming of a child is an act of parental responsibility :

a) Can a local authority under the powers given to it under the CA 1989 prevent a mother from naming and registering her child with the name of her choice; and/or
b) Can a court under its inherent jurisdiction (notwithstanding the limitations placed on the exercise of those powers under section 100 CA 1989) intervene in appropriate circumstances either to prevent the registration of a particular forename (or to change the name in question once registered)?"

175. King LJ found that the act of choosing a name for a child and registering that child's name were acts of parental responsibility.


176. When considering whether a local authority could use section 33(3) to interfere with a parents' choice of name, it being argued by the mother that it could not, King LJ said the following:



"58. That power is however subject always to section 33(4) CA 1989 which states:

"(4) The authority may not exercise the power in subsection (3)(b) unless they are satisfied that it is necessary to do so in order to safeguard or promote the child's welfare."

177.  A local authority can, by virtue of the power conferred upon it by section 33(3) CA 1989, therefore limit the power of a parent to make major decisions regarding a child's life. The local authority effectively holds a 'trump' card, which it can choose to play, in the decision making process in relation to a child in care subject to section 33(4) CA 1989. An example of the use to which this power is routinely (and appropriately) put is in deciding where a child in care is to live.
     
     60. In private law cases, some issues are considered so fundamental to a child's wellbeing that, even if a parent has a child arrangements order stating that the child is to "live with" them (an old terms residence order), that parent cannot make certain decisions without the written consent of every person who has parental responsibility or the leave of the court, including, under section 13 CA 1989, changing a child's surname.
     
     61. Similarly, where there is a care order in place, the power conferred upon a local authority by section 33(3)(b) CA 1989 excludes certain  circumstances where Parliament was of the view that the issue in question is too significant to be determined without either consent or a court order. These matters are set out in subsections (6) and (7) of section 33 CA 1989 and include at section 33(7)(a) CA 1989, causing the child to be known by a new surname. 
     
     62. Nowhere in the Act is there a similar restriction preventing a local authority from using its powers under section 33(7) CA 1989  to overrule  a parent in relation to a forename,  whether in relation to the naming of a new born baby who has been taken into care shortly after his or her birth, or at all."


178. At §65, King LJ finds,



"On the face of it, it follows (that subject to any issues that may arise consequent upon a submission that such action on the part of the local authority would be a breach of the parents' ECHR Article 8 right to respect for their private and family life) the law gives the local authority the power to exercise its parental responsibility under section 33(3) CA 1989 in order to prevent the mother from giving her twins the forenames of her choice".

179. Having made that decision, King LJ then considers whether section 33(b) and section 37 Senior Courts Act 1981 provided a proper jurisdictional route for the court to restrict the mother's exercise of her parental responsibility. King LJ concludes:


180. "In my judgment notwithstanding that a local authority may have the statutory power under section 33(3)(b) CA 1989 to prevent the mother from calling the twins "Preacher" and "Cyanide", the seriousness of the interference with the Article 8 rights of the mother consequent upon the local authority exercising that power, demands that the course of action it proposes be brought before and approved by the court".


181. Returning to the decision of Theis J in Re A , B , C and D (Welfare of Children : Immunisation) [2011], at §11, Her Ladyship referred to the case of Re Z (A Minor)(Freedom of Publication) [1996] 1 FLR 191, where  Sir Thomas Bingham MR said at 217 B-C: "I would for my part accept without reservation that the decision of a devoted and responsible parent should be treated with respect.  It should certainly not be disregarded or lightly set aside". At §12 Theis J reminded herself that "the court also has to carefully consider Article 8 of the European Convention and, in particular, consider whether what is proposed is a justified and proportionate interference with family life".


182. Having considered in some detail the authorities referred to above, this local authority does, in my judgment, require the authorization of the court for Risperidone and Melatonin to be administered to T. I find this for 3 main reasons:



(a) each drug, whilst commonly used with autistic children, has recognized and serious side effects;

(b) T's impairments are such that I am satisfied that he would have more difficulty in expressing that he was suffering side effects, were they to arise;

(c) If the administration of vaccinations and the change of a child's first name are such serious interferences with the article 8 rights of a parent, so as to require an order under the inherent jurisdiction of the High Court to override the will of a parent, however unreasonable that parent may appear to be, it would be a nonsense for the reasonable concerns of this mother not to be of sufficient gravity to justify similar protections.

183. I appreciate that my decision undermines the power the local authority thought it had available to it under section 33(3) CA 1989. During the hearing of submissions, I raised myself the proposition that the administration of medication over a period of time, that is not a one-off or a short course, such as is the case with vaccinations and, indeed is the case with a change of name decision, might need to be seen differently. Dosages of medications can change. Frequency of administration of the drug can require alteration and it is simply not practicable for alterations in drug regimes to be managed by the court. However, having set that particular hare running, I have reached the conclusion that the administration of these medications, and especially the risperidone, involves such an interference with the article 8 rights of M, that any decision as to whether administration is to be started must be made by the court. Whether it is then necessary for the court to remain involved once that initial decision has been made, is a matter upon which I will hear argument at the next hearing.



Orders and Next Steps



184. The local authority will now need to reflect on my decision concerning the administration of medication and advise the court if it intends to seek the authorization I have determined that it requires.


185. I will make a final care order placing T in the care of the local authority subject to the local authority amending the terms of the care plan in the ways indicated within this judgment.


186. I make a declaration that it is lawful for the local authority to deprive T of his liberty at X unit but I will limit that authorization to a period of 6 months for the reasons given by the Guardian. However, I can see no impediment to the review of that authorization taking place on an earlier date and I will hear further argument as to when that date might be, upon receipt of a response from the local authority as to whether it intends to continue with its plan to administer risperidone and melatonin and seek the authorization of the court to do so.


187. That is my judgment.