England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Sitting at KENDAL

		Case numbers omitted Royal Courts of Justice Strand, London, WC2A 2LL
		28 June 2017

Sir James Munby, President of the Family Division :

1. These are care proceedings relating to a teenager I shall continue to refer to as X. She was born towards the end of June 2000 and was, at the date of the hearing before me at Kendal on 15 June 2017,^[1] only a few days short of her 17^th birthday.
2. On 12 September 2016, I handed down a judgment which summarised events down to that date: see In re X (A Child) (Jurisdiction: Secure Accommodation), In re Y (A Child) (Jurisdiction: Secure Accommodation) [2016] EWHC 2271 (Fam), [2017] Fam 80, paras 4-5, 7-9. The proceedings in relation to Y, as I referred to him, concluded on 23 March 2017 when, without any opposition, I made a final care order in relation to him: Re Y (A Child) (No 2) [2017] EWHC 967 (Fam). It had been intended that that should also be the final hearing in relation to X. But although it was apparent that the only possible outcome was the making of a final care order in relation to her, the care plan as put before me on that occasion was, in significant measure, too inchoate to enable me to approve it. So the final hearing had to be adjourned. I now hand down this judgment to explain why, on 15 June 2017 and without any opposition, I made a final care order in relation to X.
3. Before proceeding any further I should mention that the court has had the advantage of reports, dated 25 January 2017 and 28 April 2017, from Dr Audrey Oppenheim, a Consultant Child and Adolescent Psychiatrist, following examinations of X by Dr Oppenheim on, respectively, 12 January 2017 and 24 April 2017. Following the first examination, Dr Oppenheim diagnosed an Insecure Attachment Disorder, Emotionally Unstable Personality Disorder, Attention Deficit Hyperactivity Disorder, Conduct Disorder and borderline learning difficulties, but said that X did not fulfil the criteria for a psychiatric diagnosis of mental illness. In her second report, focusing on X's decision-making capacity, Dr Oppenheim said that, despite her diagnoses of Insecure Attachment Disorder, Emotionally Unstable Personality Disorder and Attention Deficit Hyperactivity Disorder, she did not think that these diagnoses constitute impairment or disturbance in the functioning of the mind such that X lacks capacity to make choices and decisions.
4. The local authority's final threshold document is dated 12 March 2017. I do not propose to go into all the details: there is no need to do so. In short, the local authority's case was that from 2014 onwards X had regularly engaged in antisocial-criminal behaviours, having been arrested on numerous occasions and charged with offences of violence, including assaulting a police officer; that she presents a risk to herself through acts of self-harm and engaging in violent and destructive behaviours towards others; that she had absconded from home and demonstrated a consistent disregard towards authorities, including the police and children's services; and that her mother (her father is dead) has demonstrated an inability to manage her aggressive and destructive behaviours and has failed to engage adequately with professionals in attempting to address these issues. Unsurprisingly, in these circumstances, and as I explained in In re X, In re Y, paras 5, 9, I had no choice but to require her to be placed and remain in secure accommodation.
5. Again, I do not propose to go into the details but, unhappily, matters continued to deteriorate. Eventually, X was sentenced by the Youth Court to a Detention and Training Order. She is currently detained in a secure unit which I shall refer to as ZX. She is expected to be released in mid-August 2017. The fact that she is subject to detention in consequence of a criminal conviction is, of course, no bar to my making a care order, though in practical terms my functions in relation to her placement and welfare inevitably remain largely in suspense pending her release: see Islington London Borough Council v TM [2004] EWHC 2050 (Fam), paras 17, 19, quoted in R (Anton) v Secretary of State for the Home Department; Re Anton [2004] EWHC 2730 (Admin) / [2004] EWHC 2731 (Fam), [2005] 2 FLR 818, para 39, and Re a Ward of Court [2017] EWHC 1022 (Fam), para 51.
6. There was, and in my judgment plainly could be, no challenge to the local authority's case on threshold, save for a suggestion that it did not go as far as it might. I am therefore concerned exclusively with X's welfare.
7. X's behaviour has continued to deteriorate, dramatically. On a number of occasions while at ZX, X has made determined attempts to commit suicide. An email dated 26 May 2017 records ZX's concerns:

"… though she does appear to have made some progress … her desire to end her own life is still a massive concern … [she] has disclosed … that she wants to die and that she will kill herself when she is in the community. ZX are deeply concerned that when she leaves here she will make an attempt on her life and we cannot see us being able to allow her to be left unsupervised without the use of anti-ligature clothing while here. We have had to increase her level of observation [at] night time to constant observation at all times."

8. The guardian visited X at ZX on 8 June 2017. In her revised case analysis dated 12 June 2017, the guardian set out, in full, the lengthy email she had sent to the local authority on 9 June 2017, the day after her visit. It requires to be read in full, and considered very carefully indeed, by everyone concerned with X.
9. While at ZX the guardian witnessed a profoundly disturbing and distressing scene when X self-harmed by repeatedly banging her head and face against the wall. The guardian commented that:

"This … came out of nowhere. My visit to her had been pleasant … She was full of smiles and laughs. Within 15 minutes however she was beyond herself."

She added:

"I have never seen or heard anything like it in my 32 years of practice."

10. The email went on to summarise what the guardian had been told by the staff at ZX:

"The entire staff group's opinion that:

• 'X's goal is not to go to [her home town] it is to kill herself' (emphasis added)

• X's intention to kill herself has 'intensified' in the past 2 weeks

• The care plan to send her back to any community setting, especially [her home town] 'is a suicide mission to a catastrophic level'. Staff do not think it will take more than 24 to 48 hours before they receive a phone call stating that X has made a successful attempt on her life (emphasis added).

• X will either kill herself or other people, she especially feels rejected by her mother … This is [her] interpretation of her mother telling her she could not have her living within the family home.

• Any care plan that allows X to visit home yet not live there is likely to underline this feeling of rejection and is therefore dangerous to X and to other people

… The unit has 2:1 staffing levels, they have risk assessed every inch of X's surroundings. She has still managed to eat all the silicone around the windows, still attempts to tear up doorplates to ingest either pieces of wood or screws, all the plastic sockets had to be replaced with metal, she cannot have carpet in her room (which is nothing more than a cell), she has to be checked every 50 seconds in the shower and only this morning was found naked banging her head off the sink, the mirror had to be removed in case she smashed it and cut herself.

… Staff feel their professional opinion has to be conveyed to the court as they believe X has begun to open up to them, make some level of attachments to staff, yet resents them for stopping her carrying out her deeply held wish to die. They wish it to be known that their collective view is that X is not acting out because she is in a secure unit and this behaviour will stop as soon as she is given her freedom, they can only foresee X making continued attempts to kill herself due to whatever is buried deep within her and which intensifies whenever she experiences the negative atmosphere of her mother's home where her emotional needs are not met (they state contact is poor quality and is not emotionally nurturing to X) and where in fact she feels she is less important and loved by [her mother] than her siblings.

The staff group all agree that X will not manage in the community, that she requires long-term adolescent mental health unit input (emphasis added)."

11. In her revised case analysis the guardian said this:

"She is an extreme risk to herself and to others whenever she makes attempts to run home to her mother's address. It has also long been a significant concern, bordering on a belief, for all professionals that X's self-harm and attempts at suicide are born of frustration at being contained with a secure setting and once removed from this environment and allowed to be with her mother this will not occur.

In recent days I have had cause to re-examine this belief, following my visit to X in ZX on 8.06.17. Whilst I am fully aware of the psychiatric assessments filed by Dr Oppenheim within these proceedings and accept that her findings are in accord with all previous such assessments of X by treating clinicians throughout her time in local authority care, I decided to relay to the parties the full extent of the observations by the secure unit staff who are with X 24 hours a day. They describe intensifying suicidal intent and ideation, and ongoing distressing restraints where X loses all control. Their professional opinion, whilst not court appointed experts or medically qualified, should in my opinion be taken extremely seriously in terms of X's safe care planning (emphasis added). They observe [her] every minute of the day, even watching her from a seat near her bed whilst she sleeps such are their concerns. This is in contrast to the acknowledged problems of all the psychiatrists who have attempted to assess X as she simply refuses to engage or gives minimal, superficial answers. In essence we have a difference between predominantly paper-based assessments and those taking place on the ground every minute of the day."

12. In relation to X's relationship with her mother, the guardian said this:

"X's closest attachment relationship is with her mother … It has often been stated how X will take her mother's lead on her reactions to relationships or problems. I do not believe the attachment to be secure; there is a deep-rooted insecurity within the mother/child bonding and attachment. The staff at ZX report that the overriding interaction between X and her mother during fortnightly contact visits is that [her mother] uses the majority of the time up relaying to X various family events, arguments or crises, leaving X still craving signs of affection or personal parental interest at the end of the time they have had together.

It is the belief of ZX key workers for X that any care plan that allows and even encourages her to spend time in the family home experiencing this frustrating and negative emotional experience is fraught with danger. Those of us who have known the family for the entirety of these proceedings will recognise that despite X and [her mother's] professed love for each other, there are risks within their relationship, on the surface a close one to the exclusion of all others, yet underneath it a mass of unmet need for X and an ever present resentment and jealousy of her younger siblings whom she perceives as receiving more love and attention from [her mother]."

13. A report from ZX dated 14 June 2017 is profoundly disturbing. I do not set out the distressing details; the substance appears sufficiently from the following passages:

"ZX have been particularly concerned about the level of risk that X has presented with and her ongoing desire to cause herself high level of harm. Despite a rigorous and robust risk management plan developed by a multi-agency partnership including Child and Adolescent Mental Health Services X has continued to demonstrate self-harming behaviours and has been increasingly creative in her methodology.

… Because of the risk relating to self-harm and concerns relating to her intentions to attempt to end her own life she is currently managed on a 2-1 constant observation, with staff being in close proximity with eyes on her at all times between 08.00 and 22.00 (or until asleep). Once asleep, she is on constant observation throughout the night on a 1:1 basis, should she wake during the night staffing levels return to 2-1.

X has made four significant and serious attempts to ligature, which have resulted in staff using ligature cutters to remove the items from around her neck. Her commitment to ensuring that these would be successful was significant (emphasis added).

… On 23 May 2017, the CAMHS psychiatrist, at ZX made a referral for X to be assessed for medium secure mental health provision to the Forensic CAMHS [name omitted] Mental Health Trust. Shortly after, ZX was informed that X did not meet the threshold for Medium Secure Mental Health Provision but that a recommendation for assessment for Low Secure Mental Health Provision was acceptable.

On 29 May 2017, a referral was made to the Specialist Commissioner NHS England – North West Hub for an assessment for X to access a Low Mental Health Provision. On 5 June 2017 ZX were informed that a Gateway Assessment for admission to a Low Mental Health Provision would be made by [name] Mental Health Trust on 29 June 2017.

… It is a shared view between staff and CAMHS specialist clinicians that ZX is not the correct placement for X based on her current and on-going presentations. It is felt that we are unable to meet the escalation of her needs and a more clinical environment would be more appropriate (emphasis added)."

14. The report adds this important and concerning information:

"Since arrival, 85 Reportable Incidents have been recorded for X, all of which have been as a result of self-harming risks and behaviours. The vast majority of incidents have resulted in restraint.

… X has fortnightly visits from her mum on the unit (the risks are assessed as too great to be held in the usual visiting areas). The visits are closely supervised by two staff at all times, and extra staff are positioned on the unit should any incident arise during the visit.

X has had five visits in total over the past months, each of which have resulted in [her] demonstrating behaviours which have resulted in the need for her to be physically restrained later the same evening."

15. The local authority's final care plan was dated 17 May 2017. It set out three 'contingency' plans, each involving a return to the community with support from an organization whose employees, as the guardian points out, operate under a 'no restraint policy' and would be reliant on the local police. The first two plans would provide for a return by X to her home town, either living with her mother or in a "bespoke placement". The third plan is for a similar "bespoke placement" but outside X's home town.
16. In a position statement dated 14 June 2017, seen and approved by her, Mr Simon Rowbotham was forthright in articulating the guardian's concerns:

"The facts of this case are calamitous. Indeed, a review of the initial evidence of the local authority from April 2015 (now over two years old) makes for sobering reading at what must today (by necessity of X's pending majority) be the final hearing. At the time these proceedings were issued, the local authority were concerned for a child with poor school attendance, 'low-level criminality', periods of absconding and a mother who lacked the insight and parenting capacity to assist. Now, in June 2017, the court finds itself tasked with determining issues of welfare for a child seemingly committed to killing herself, with a raft of serious criminal convictions to her name and a toxic relationship with her mother. It would be an understatement to say that matters have moved on since April 2015; it is difficult to see, however, what (if any) progress has been made in the face of the appalling deterioration in X's life that has taken place while in the care of the local authority. [She] has completed little if any therapeutic work; repeated opportunities to make progress were repeatedly lost in the early stages of this case such that (one might think) we are no closer to a resolution: she remains in secure placement, with deteriorating behaviour and not a hint of a realistic exit plan (emphasis added)."

Mr Rowbotham went on to articulate the guardian's "considerable concerns as to the local authority's ability to act appropriately, sufficiently and responsibly to safeguard X's best interests." He sets out the guardian's concerns about the local authority's failures to keep her informed of what was happening to X at ZX. Referring to the 85 incidents that ZX had reported to the local authority, he comments that it is "difficult to understand why none of the recent reports were communicated" to the guardian, to X's mother or to X's solicitor.

17. The guardian's view remains that the only appropriate order is a care order. However, as Mr Rowbotham puts it,

"The guardian cannot, however, recommend the making of a care order if it is to be made on the basis of the care plans as they currently stand before the court. Indeed, it is respectfully submitted that the three 'contingency' care plans are not merely inappropriate at this time but tantamount to negligence; it cannot be said that they are truly 'contingency' plans when, in all reality, they are unmanageable, unrealistic and dangerous and against which professionals working with X have expressed their concerns as to the high risk of suicide …

It is understood that the local authority have reconsidered their position and accept that the final care plan as currently before the court is unworkable. At the advocates' meeting on 13 June, it was confirmed that a multi-agency meeting involving professionals from health and social care will be convened with a view to considering (in the first instance) whether or not there is now scope for psychiatric intervention. This would certainly be supported by the guardian in light of her most recent report and the considerable doubt that has been expressed by professionals on the ground as to Dr Oppenheim's conclusion that X's suicidal tendencies are behavioural rather than issues of mental health (emphasis added). It was further indicated that, failing the assistance of mental health provision, the local authority might agree to issue an application pursuant to the inherent jurisdiction.

To say that the local authority's care plan is inchoate at this time seems to understate the position … It does not appear that the local authority have given any thought to the possible need for a secure placement upon discharge from ZX. If X is released from the DTO … as planned [in] August, there is currently no plan as to what will happen, where she will go, what support will be in place etc (emphasis added).

The guardian would wish to see the commitment of the local authority to pursuing orders under the inherent jurisdiction, in which proceedings the guardian might be appointed. Indeed, it is noted that there is already an active application before the court for orders under the inherent jurisdiction as issued on 23 June 2016; it may be possible, therefore, for the court to conclude the Children Act 1989 proceedings but with the application before the High Court remaining live."

18. Mr Rowbotham adds this:

"In the two years in which the local authority have shared parental responsibility, it is unclear what (if any) intervention work has actually been completed with X. The local authority have the benefit of Dr Oppenheim's recommendations in respect of the need for 'intensive therapy…in a residential therapeutic setting with education on site for at least a year before she turns 18' in order to address issues arising from her Emotionally Unstable Personality Disorder. Dr Oppenheim makes further recommendations in light of treatment for ADHD by way of 'stimulant therapy'. To date, no progress has been made in either regard and – from the local authority's final care plan – it is not clear what arrangements they will make in attempting such interventions in the future (emphasis added)."

19. I have set out the guardian's concerns at some length because they bring out, with great clarity, the enormity of the task facing the local authority and the stark reality that, for whatever reasons, the local authority has not yet been able to articulate any workable care plan for X, let alone to identify where she might be accommodated and what services should be made available for her. I can only echo and endorse the guardian's bleak assessment:

"there is currently no plan as to what will happen, where she will go, what support will be in place."

More generally, as I must emphasise, I find the guardian's analysis and recommendations compelling. I agree with them.

20. The order I made following the hearing (see below) records the guardian's position in relation to contact between X and her mother as follows:

"… there has been no assessment of risk or contact planning. This needs to happen as a matter of urgency. At this time, the guardian does not support unsupervised contact and would not support an increase from the current fortnightly arrangement; telephone contact needs to be fully monitored."

The order then recites that I "concurred" with those views of the guardian in relation to contact.

21. The local authority's final position was set out in an updating position statement, also dated 14 June 2017, prepared by Mr Michael Jones. The local authority acknowledges that, in light of the level of self-harming behaviours exhibited by X, including apparently obsessive expressions of a wish to die, it is "highly doubtful" that her behaviours can be effectively managed in a community setting. He says:

"The reality is that experienced staff at a secure children's home have apparently struggled to manage her behaviours, making the prospect of any supported community based placement (or indeed a home placement) currently unmanageable in terms of risk (emphasis added)."

He goes on:

"The local authority is alive to the urgent need to identify an appropriate placement and is making enquiries with health professionals, including Dr Oppenheim, in this respect. It may be that some form of private hospital/clinical provision could be identified where X can receive therapeutic treatment/input, in line with the recommendations of Dr Oppenheim; the local authority wishes to make clear that there are no budgetary restrictions placed upon searching for appropriate placement provision.

Currently, given X's behaviours, the local authority's position is that any placement immediately following her release from ZX will require restrictions to be placed upon her liberty; Section 25 is, in the view of the local authority, no longer an appropriate avenue … Accordingly, unless she is either detained under the Mental Health Act or assessed as lacking capacity, the only way for the local authority to obtain lawful authorisation for any such restrictions would be via the exercise of the inherent jurisdiction. If she is assessed as lacking capacity then the jurisdiction of the Court of Protection could potentially be used in order to seek authorisation of a restrictive care plan, however, currently, this child has been assessed as having capacity and there is no evidence which can properly be elicited to rebut that presumption. Accordingly, any placement sourced by the local authority is going to require restrictions to be placed upon X's liberty, including possible restraint; in the absence of such restrictions there is ample evidence that she will simply abscond and resort to self-harming behaviours/attempts to take her own life. The local authority therefore sees it as inevitable that it is going to have to make a further application to the court, prior to her release from ZX, in order to authorise a restrictive care plan, which will clearly be required once a placement is identified."

22. The order I made following the hearing records the local authority's position as follows:

"given the level of behaviours currently exhibited by the child, there is no realistic prospect of managing such behaviours within supported accommodation or within any home placement

… any placement immediately following the child's release from ZX will require restrictions to be placed upon her liberty in order to ensure her safety."

23. The mother's view is that X is on "a path of self-destruction". She is "deeply worried" that X will continue to self-harm if she remains in secure accommodation, but equally is worried that X could attempt to kill herself if living in the community. She believes that her contact with X should be increased in frequency and take place under more relaxing conditions.
24. X's first preference, as expressed to her solicitor when she visited her at ZX on 11 June 2017 (X has her own solicitor and counsel), is to return to her home town to live with her mother; if that cannot be achieved she would want to live nearby her mother so as to be able to see her every day.
25. The position statement dated 12 June 2017 prepared Ms Rebecca Gregg on X's behalf, reports her solicitor's view as being that X's "determined focus", as repeatedly expressed during her visit, is to return to her home town as soon as possible, and records X as simply shutting down at any mention of her actions and as being "not interested, or perhaps not able" to discuss possibilities when it comes to future care planning.
26. In these circumstances the court is placed in very considerable difficulty. The need for a final care order is overwhelming. It is imperative in X's interests (a) that the local authority has parental responsibility and (b) that X can enjoy, now and, after she leaves care, in accordance with the 'leaving care' legislation, all the benefits which will accrue to her if there is a care order. But there is at present no realistic care plan available for me to approve, other than (see below) a plan of action which it is hoped will lead to the formulation of a proper care plan. Yet my ability to make a care order, given X's age, will be gone in a matter of days. What am I to do?
27. The conundrum can properly be solved because, as is common ground between the local authority and the guardian, and I agree, (a) if an appropriate placement for X can be found which properly meets her very complex needs, it is likely to involve a deprivation of her liberty requiring judicial sanction and (b) for the reasons given by Mr Jones, that sanction is, in the circumstances, properly a matter for the Family Division rather than the Court of Protection. And, as it happens, there are, as mentioned above, extant proceedings in the Family Division available to be used for this purpose.
28. What, therefore, I can, and do, approve, for the purposes of the care order, is a plan of action which, it is to be hoped, will lead to the formulation of a properly worked-up care plan that can be put before me for my approval, exercising the inherent jurisdiction, before X is released from ZX.
29. The full details are set out in the two orders which I have made, the one order being the care order and the other being a directions order in the inherent jurisdiction proceedings.
30. What I have called the plan of action has the following components:

i) The holding of a multi-agency meeting (to be attended by various specified professionals) immediately prior to a mental health assessment of X which has been arranged to be carried out by [name] Mental Health Services on 29 June 2017.

ii) A consultation with Dr Oppenheim to take place on 3 July 2017, with her views being sought in relation to a potential placement where X's therapeutic and treatment needs can be appropriately met and/or a potential provider to provide those therapeutic, treatment needs in any future placement and the contact between X and her mother. Dr Oppenheim will then provide a further addendum report addressing capacity and diagnosis.

iii) The convening by [name] Clinical Commissioning Group of a Care Education and Treatment Review Panel to look at identifying and possibly commissioning placement provision for X within the NHS and the private sector. This will be preceded by a telephone conference of all key clinical commissioning professionals in the week commencing 19 June 2017 to ascertain what information they will require in order to make a decision in relation to funding and care provision, following which it is anticipated that health professionals will be able to make recommendations in relation to potential placement options. The views of Dr Oppenheim will be provided to the panel meeting.

iv) The filing and serving by local authority in the inherent jurisdiction proceedings:

a) by 14 July 2017 of a risk assessment in relation to contact between X and her mother, with recommendations as to the appropriate duration and frequency of contact;

b) by 25 July 2017 of the addendum report of Dr Oppenheim; and

c) by 26 July 2017 of a care plan setting out its proposals in relation to placement, support and the details of any proposed restrictions that are to be placed upon X's liberty (in the alternative, if a placement has not been located, a statement setting out a chronology of the efforts made to identify a placement, the professionals and agencies consulted and the progress to date) and, by the same date, an updated chronology from ZX; and

v) The listing of the inherent jurisdiction application for further hearing before me on 31 July and 1 August 2017.

31. The care order contained further recitals that need to be emphasised:

"The guardian agrees to the making of a final care order today but has expressed her significant concerns regarding the inchoate nature of the final care plan, particularly in light of care planning to date.

The court has expressed the need for the local authority to make urgent enquiries in relation to potential placements for X forthwith. It has been clear that there must be no delay in instigating these enquiries; the local authority will make such enquiries forthwith."

32. On this basis, I made on 15 June 2017 a final order placing X in the care of the local authority.
33. The plan of action is also incorporated within the final care plan which, in accordance with directions included in the care order, has been prepared by the local authority for the purpose of the care proceedings and is dated 21 June 2017.
34. Without, I hope, trespassing on matters which will be before me for decision at the next hearing, I need to say this. There is, as is apparent from what I have already said, a substantial body of professional opinion that what X needs – and, it might be thought, desperately needs – is therapy in some appropriate clinical setting. That body of opinion needs to be taken very, very seriously, as I am sure it will be.
35. The final point is this. If there is no effective, realistic and above all safe plan in place for X when she is released from ZX, the consequences, given her suicidal ideation, do not bear thinking about. If the fears of ZX are well-founded – and this, for the time being, is the basis upon which we must proceed – we should be left with little but the hope that the police would have had occasion to take X into custody before she was able to cause herself irreparable harm. Is that really the best the care system and the family justice system can achieve?

Note 1    A historical footnote: The court at Kendal closes on 30 June 2017. This hearing was, I believe, the last at Kendal before a judge.    [Back]