England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
IN THE MATTER OF Section 31 of THE CHILDREN ACT 1989
AND IN THE MATTER OF C (A Child) (Born 2004)

		Royal Courts of Justice Strand, London, WC2A 2LL
		3/5/18

The Honourable Ms Justice Russell DBE:

Introduction

1. The child who is the subject of these public law proceeding is C, he is now fourteen years old. In February 2017 I handed down a judgment in parallel proceedings, care proceedings brought under s31 of the Children Act (CA) 1989 and proceedings brought under the inherent jurisdiction (Senior Courts Act 1981) by a NHS Trust, for declarations that it was lawful to withhold certain invasive treatment (ceiling of care) from the child.
2. C is a vulnerable child with disabilities; he was born prematurely, at 24 weeks' gestation, on [a date in] 2003. He continues to be the subject of care proceedings issued by a local authority in November 2016. The local authority seek a care order and approval of a care plan that he remains placed with specialist foster carers. His mother, the 1^st respondent (MC) wants him returned to her care. C suffers from multiple disabilities; he has severe four limb involvement spastic quadriplegia with athetoid cerebral palsy, global developmental delay, no vocal communication, curvature of the spine, epilepsy, very limited swallowing reflex and respiratory problems associated with his limited lung capacity and very limited respiratory reserve with chronic small aspiration into his lungs depleting his lung function. His lungs are damaged because of previous infections.
3. C was susceptible infection generally because he suffered chronic malnourishment; this is no longer the case as he has gained weight and his general health has improved substantially since his placement with his foster carers. In addition, C has suffered from chronic severe acid reflux. C's epileptic symptomology includes involuntary movements and dystonic spasms. When distressed his tone heightens (he becomes stiff); this occurs when he is suctioned to remove secretions. His life expectancy has been limited as a result of the multiple difficulties and conditions from which he suffers.
4. C was, and is, habitually resident (this has not been disputed) in the United Kingdom, although his family is Romanian, and prior to being placed in the care of the local authority, he had always lived with his mother apart from periods in hospital; and a short period of about six months when he was cared for by his maternal family in Romania when C and his mother had some difficulty in re-entering the UK in 2006. At the time of the NHS application regarding his treatment he was subject to a s38 (CA) interim care order. There was a contested hearing in early 2017 at the end of which findings were made and he remained subject to that order. Those findings are set out in my first judgment in this case reported at [2017] EWHC 370 (Fam).
5. When the applications first came before the court in 2017 C's mother (MC) was his sole carer; she did not agree to a ceiling of care being put in place nor to any treatment being withheld, nor did she agree to there being an interim care order in place. C was and is separately represented through his children's guardian. He has lived with specialist foster parents in the South coast of England since he was discharged from hospital in 2017. MC continues to oppose the application for a final care order and for a substantial reduction in her contact. She wants C to move to live with her mother in Romania. The local authority's application is supported by the guardian. The guardian, who gave oral evidence before me, and had clearly given C's contact with MC careful thought, concluded that there should be limited face to face contact. It was apparent from her oral evidence that the guardian was struggling to find a reason for any face to face contact to take place at all, and was concerned that the predominant reason for it to take place was compassion for MC rather than to serve any need or benefit for C himself.
6. The improvement in C's condition, in his overall health, appearance, inter-action with others and enhanced ability to react with pleasure to his surroundings and outside stimulation, since he has been placed with his current carers is marked and substantial. Although this court, indeed any court, should be wary of reaching any conclusions from photographs, the pictures taken by his foster-carers, which I have seen make it obvious that this is a very different boy. Indeed MC herself accepts that C's condition has improved. The declaration in respect of the ceiling of care is no longer in force; and C is now under the care of a different NHS trust local to the area in which he is living. His prognosis had improved. There is one substantial change in C's circumstances which must have, in all probability, contributed to the improvement in his health and his ability to gain enjoyment from his surroundings and that is the change in the person or persons who provided his day to day care. It is, I find, self-evident that the truly remarkable change in C's presentation and condition came about after he was no longer in the care of his mother.

C's background & the care proceedings

7. The background and history of C was set out in considerable detail in my previous judgment; I do not intend to rehearse again the circumstances which led the local authority to issue public law proceeding again in this judgment, and the reasons given for making a care order and contact order, are to be set against the comprehensive description of C's history and the proceedings as a whole contained in that judgment. At the time of the hearing in February 2017 there had been chronic and well-documented concerns about C being underweight and under-nourished and had led to him being fed through a naso-gastric tube (NG). His mother considered that he should be fed orally, against all medical and professional advice, and that continues to be her position. Allegations were made about her removing his feeding tubes which were found to be substantiated by the court, based on the evidence before it.
8. C's weight had been a long-term concern of the medical professionals responsible for his care; such was the precarious nature of his health and nutrition that his low weight led to his admission to hospital for feeding tubes to be put in place. The local authority contended at the first hearing that the evidence supported findings that MC was unable to work with professionals over a period of years and that she demonstrated a "disguised compliance" which had placed C in danger. On the basis of the findings made the court approved the local authority's plan in that when C was discharged form hospital he should not be returned to his mother's care but live in a specialist foster placement. The care plan is for him to remain there. For reasons that I shall set out below and consider throughout this judgment the court is satisfied with the care plan and that a care order best meets C's needs and that it is in the interests of his welfare; I have considered throughout, as provided for by statute, the "check list" as set out in s 1 of the CA 1989.
9. C's father has not played any part in these proceedings nor, indeed, in his son's life. C's father FC is said by MC to be living and working in London and to have had limited and sporadic contact with his son. The local authority have not been able to locate him, to ascertain his views or even to serve him with notice of these proceedings. MC told the court last year that she has attempted to contact FC on Facebook when C was taken into hospital; and that she had spoken to FC's brother (C's paternal uncle). There had been no subsequent contact. Until he was placed with his foster family, MC was his main and sole carer and there can be little doubt that she had made him the centre of her life. In February 2017, I found that, because of his multiple disabilities and difficulties it had become a full time occupation and struggle for her, and she had had minimal, if any, personal support. MC has not been willing or able to take, accept and act on advice that she did not agree with, or which does not coincide with her, sadly mistaken, concepts of what is best for C and what his needs are; there were times when it seemed that her view of C's needs were so closely aligned to her own that it was almost impossible to separate the two, at least in her own mind. Even when he was in hospital, in order to safeguard C, MC had to be supervised when on the ward.

Romanian connection

10. As I have said, MC is a Romanian national and C, who was born here and has never been in Romania for any longer than a few months, is Romanian by descent. The local authority have, at times, been less than assiduous in ensuring that the Romanian authorities have been kept informed of the case so that they could intervene if they considered it advisable or necessary to do so. Nonetheless I am satisfied that C is now and has been habitually resident in the United Kingdom at all material times, and that the Romanian authorities have been informed and were aware of these proceedings prior to the final hearing in December. Moreover the final judgment of the court was delayed so that documents provided by the Romanian authorities could be translated, by the local authority, before the court reached its final decision. This was a further delay which, as the guardian had pointed out, was not in C's interests, but it afforded the Romanian authorities a further opportunity to intervene should they have wished, and for the court to consider what could be put in place in Romania.
11. The supported placement with C's grandmother put forward on behalf of the authorities in Romania were not based on any direct assessment of C's needs by the authors of the documents or, indeed, by any social work or medical professional qualified in either the assessment or provision of care for children with disabilities. C's grandmother had apparently voiced concern about her ability to care for him and it was not explained in adequate detail what support would be provided for C and his grandmother. C is not used to hearing the Romanian language and his grandmother is a stranger to him; there was no explanation of how the transition from his current carers would be managed to minimise the distress that would undoubtedly be caused to C. An unnecessary move to Romania, based largely, if not solely, on nationality would not be in C's best interests.

The proceedings, the law and the evidence

12. The local authority applied for a care order on 25^th November 2016, pursuant to s31 of CA 1989. In my previous judgment I referred to the presumption, expressed by Lord Donaldson of Limington in Re J (A Minor) (Wardship: Medical Treatment) [1991] Fam 33; "We all believe in and assert the sanctity of human life …. Even very severely handicapped people find a quality of life rewarding which to the unhandicapped may seem manifestly intolerable. People have an amazing adaptability. But in the end there will be cases in which the answer must be that it is not in the interests of the child to subject it to treatment which will cause it increased suffering and produce no commensurate benefit, giving the fullest possible weight to the child's, and mankind's desire to survive."
13. The improvement in C's overall health and his ability to enjoy stimulation and the care given to him by his foster carers is a sterling example of the ability to find a quality of life when the opportunity is there and an individual's needs are properly met. Each such decision of the court is a decision is to be wholly based on the specific facts of the individual case. I found that such was C's mother's belief (a belief she still holds) that C should be fed orally that he has suffered malnutrition as a result of the lack of the supplementary feeding that he so obviously needed. C was severely malnourished, his weight between 20 and 25 kilograms in a boy of 13 years old. He is now maintaining an appropriate weight and his outward appearance, as I have said, has been transformed.
14. There is currently an interim care order in place. At the first hearing the court has heard the oral evidence of a care support worker, Dr K and Senior Staff Nurse Y in respect of MC's care of C in hospital prior to care proceedings being issued on 25^th November 2016. The court heard the oral evidence of MC both as to her behaviour and care of C in hospital in October and November 2016 and her views regarding the declarations sought by the Trust and subsequently at an interrupted second hearing (followed by an extended delay during which MC's capacity to litigate was investigated and assessed) in respect of her case that C should be returned to her care. The court has heard from the guardian and allocated social worker in respect of the care plan.
15. As alluded to, the proceedings were delayed and prolonged as a result of applications made by those instructed by MC as to her capacity to understand and participate in this litigation. The final hearing had been listed for May 2017 with the local authority seeking a full care order, supported by the guardian. The case was adjourned part heard when the issue of MC's capacity was raised during the course of the hearing, specifically, during her oral evidence. It seemed obvious that she was struggling to give coherent answers to questions she was being asked when she was being cross-examined by counsel for the local authority.
16. An appointment was made for MC to see Dr Ratnam to assess her capacity and a certificate of capacity was made on 23^rd June 2017. The court had already heard evidence from Jenny Cooke (an independent social worker (ISW)) who carried out a parenting assessment; she provided an addendum report, along with evidence from the allocated social worker and was in the course of hearing MC's evidence. Prior to the hearing in May 2017, MC made unsubstantiated allegations of sexual abuse against the male foster carer which had led to police involvement with the foster carers; the police took no further action. It was considered to be necessary for DB (the contact supervisor) to give evidence specifically about the contact visits on 10^th and 11^th May 2017. DB provided a statement and the relevant records of contact. MC has since continued to attend contact and there are a few positives recorded in that contact from the perspective of C himself; indeed, up until December 2017 contact had deteriorated in quality and C is recorded as crying on more than one occasion. As C has progressed so have questions arisen over any benefits he is deriving from contact.
17. When the case returned to court on 6^th June 2017 for further case management; directions were given including that the local authority were to notify ICACU of the proceedings by 13^th June 2017. The matter again came before the court on 6^th September 2017 when the court made further directions and the matter was to be listed for another day to conclude the final hearing: it was set down for 21^st December 2017. MC concluded her evidence and the guardian gave oral evidence.
18. Burden and standard of proof. It is the local authority which brings the care proceedings and the burden of proof is on it. As I set out in my previous judgment any findings made must be to the appropriate civil standard of proof, the balance of probabilities, as set out by the House of Lords in Re B (Care Proceeding: Standard of Proof) [2008] 2 FLR 141: I have kept in mind the words of Lord Hoffman in Re B which apply to any finding of fact: "If a legal rule requires facts to be proved, a judge must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are nought and one."
19. I have previously made findings about MC's care of C based on the evidence of J, which I accepted: J had observed when MC was caring for C and her observations included repeated refusals by MC to follow advice, her aggressive response on being challenged, her obduracy in continually lifting, dressing and re-dressing C when it was not necessary and orally feeding C, again, after repeatedly being told not to do so. J was not a witness who was unsympathetic to MC, she was someone who had tried to work with MC and to encourage her to act on the advice she had been given, as well as offering her some personal support which she greatly needed, and probably still does.
20. I had previously found MC's oral evidence lacked credibility in respect of the NJ tube twice being removed from C, particularly her claim that it had happened accidentally and that C himself had removed the plasters on his face holding the tube in place. Her assertion that C himself was somehow responsible for removing the tube from his gut was disturbing and telling, for as his mother she ought to be very aware of the limits of C's abilities, and the fact that he is unable to make movements with his limbs voluntarily, as he suffers quadriplegic spasticity. She had sought to blame C for her own actions. This finding lays bare her inability to provide or seek to provide C with the care he needs: as does the findings that she had pulled out the NJ tube on 24^th November 2016 and again on the 17^th November 2016. C's physical safety was compromised in the act of removal, and once again, he was unable to receive the nutrition he needed and was subjected to further discomfort and the weakening effects of radiation (from the resulting x-rays).
21. In her oral evidence before me in December 2017, once more, MC was unable or unwilling directly to answer the questions that were asked of her and was, again, belligerent, evasive and dissembling in her responses. She appeared confused at times but not to the extent that she did not understand what she was being asked and it is most likely that she used a veneer of confusion to mask the fact that she did not want to answer the questions put to her. This was particularly evident when she was asked about her conduct during contact: for it is during contact that C has been observed (by his nursing/care supporter (N) who facilitates contact) to be distressed to the extent that he cries and sobs with tears running down his cheeks.
22. In order to support C by providing some respite care and assist him during contact N has got to know C and described him to his guardian. N has taken C on bike rides, on trips on the bus and for long walks all of which he loves. She has spoken of her pleasure in working with C and in seeing him develop; she has said to the guardian that he "loves engagement, he is so rewarding, he is funny" this last attribute indicates an active intellect. N worries that in supporting his contact with MC, she has let C down because he is so different, appears unhappy and that there is nothing she can do to help him. N told the guardian that the difficulty was that contact was generally stressful, MC is often late, keeping C waiting, often argumentative and "never wants to take advice". N said that MC was strange in her manner, fussing about C's clothing, handling him in a way that took no account of his painful hips, or the pain that he suffers if his head is moved too quickly or at the wrong angle.
23. On one occasion, just prior to the December hearing, N described difficulties over C's clothing when MC insisted on increasing the layers he was wearing despite the fact that he had been hot and sweaty when he arrived at contact; and that she must be aware that he cannot readily regulate his own temperature. MC then tried to write with C forcing a pen into his hands which had, self-evidently from his facial expression, caused him pain. MC read at him standing behind him notwithstanding the fact that he has 80% hearing loss, and had had to be told, repeatedly, not to make him lean forward as it is painful for C; eventually the supervisor had to intervene, which resulted in tension during the session, which C would be bound to sense and pick up. N thought C was about to cry. MC did not reply directly to questions about contact, but this episode, which I accept occurred, demonstrated what the guardian had concluded in her final analysis: MC had not made any progress in relation to her insight about her parenting of C and had not learnt anything from the assessments of C and his needs.
24. Like his guardian, I have carefully considered the (undisputed and unchallenged) contact notes, and agree with her view that C is not comfortable with his mother during contact. The guardian put it plainly, inevitably during contact C has to endure situations in which he is exposed to belligerence, stress, and a lack of focus on C, because of MC's conduct. He has, on occasion, cried in pain as a direct result of the way MC handled him. She insists in engaging with him in ways that are not reflective of his needs or abilities. She is even unable or unwilling to tell if he is too hot so that if she has decided he needs another layer she makes him even hotter; she forces him to hold a pencil or pen, despite the fact others observe him being in pain. The guardian found herself asking whether there should be any contact at all.
25. C himself. The undisputed fact is that the extent of the harm that C suffered in his mother's care, which was, as the guardian observed in her evidence, chronic significant harm, has become more and more apparent, and the understanding of loss of development and potential, during the time he was cared for by MC, has increased. The apparent enjoyment he has now demonstrated in his life, existence, and surroundings was masked by the discomfort, malnourishment and distress he suffered in his mother's care. He is now able to communicate and learning to do so by Eye Gaze, and his personality and likes and dislikes are emerging in a way that was quite simply absent before. He is able to interact, has an emotional presence and is even gaining some independence skills. All of this is so different from the child that I decided to allow a ceiling of care for in early 2017. This young person, who I described as a "vulnerable, fragile child" with a "frangible ability to communicate, at all, with MC and others", is still a very vulnerable adolescent with a shorten life-expectancy but, thanks to the love and support shown by his carers and those who support them, C's personality has emerged.
26. C is loved by those who surround him. As his guardian says, not in a patronizing or pitying way but because his personality is so strong and engaging. As the guardian reported to the court C is "physically transformed. He is broader, chunkier in muscle tone, his face is animated, and he is clearly on the cusp of puberty." As to C's increased ability to communicate and show independence, he is able to change channels, and choose games or programmes on screen. He laughs "uproariously at slap-stick and likes to watch adults being a bit silly", according to his foster carer, for when watching this C looks pleased and delighted and laughs out loud. He is learning Makaton and has settled well into school where he has been given the role of messenger. He loves going on the school bus and interacts happily with his escorts, his teachers and his peers. He is generally happy and contented, can communicate with his carers, likes to be hugged by them and snuggles up. He rarely cries at home or at school, indeed I am told that he is loved, in part, because of his happy personality. It is quite a transformation in this young man, of which this court is pleased to take note.

MC's behaviour toward the carers

27. The guardian and local authority have expressed their concerns to the court about MC's behaviour in respect of the foster carers; the court was told that she had "bullied" or manipulated administrative staff, at the hospital C attends, into giving her the address of C's foster home. She suggested that C was being mistreated. Both the guardian and local authority, rightly, submitted that this kind of behaviour should play a part in the consideration of the appropriate level of contact. MC has made an unsubstantiated and serious allegation against the foster carers. She has continuously refused to engage or work with professionals including those supervising contact. MC's behaviour during contact and the need to safeguard C has effectively meant that two professionals need to be there during contact; even two professionals find it difficult to manage her behaviour. The guardian was concerned that she would destabilize what is, on any terms, a most successful and suitable placement for C; the guardian reports that C's carers have been distressed and concerned as a result of MC's behaviour. Clearly contrary to his best interests, this cannot be permitted, if it continues the court may need to impose prohibitions in the form of injunctive relief.
28. MC has failed to demonstrate any understanding of C's complex needs; unfortunately the court has had to conclude that not only does she not have the ability or capacity to care for C but she also continues to cause him harm during contact as I have set out above; and has shown that she cannot even bring suitable gifts for him, by taking clothes that are too big and gifts unsuited to his needs and abilities such as a watch. Moreover, as observed by the guardian, it is a basic foundation for the care of a young person with complex disabilities that their parents or carers engage and work with professionals, MC has repeatedly and consistently failed to do this; all evidence is to the contrary. There is no evidence which could lead to a conclusion that MC could safely or adequately care for MC. The evidence is that she had, in fact, inhibited his development and exacerbated his condition; as can be seen from the remarkable strides he has made since his reception into care.
29. There can be little if any doubt that a care order is in his best interests. The guardian reminds the local authority that C's long-term welfare will be best served by close liaison with adult social services which should be put in place sooner rather than later given his age. This is endorsed by this court as is the need for the local authority to address the question of C's naturalization as he was born in the United Kingdom. At the hearing in December 2017 the local authority did not appear to have made much progress in their enquiries until 20^th December 2017 after the other parties had expressed concern. It is the expectation of this court that the relevant forms have been completed to ensure that C's status in the UK is secure.

Conclusions and contact

30. I have, as set out above, carefully considered the contact that has taken place and the benefits to C of contact continuing. The local authority proposed reducing contact to two hours twice a year; the guardian to one hour twice a year given the limited benefit to C. As the guardian pointed out in her analysis, MC had the opportunity over several months to consider the previous judgment of the court and either seek some help or take up the suggestions made by the local authority and others; she chose not to do so. Contact has not been of any real benefit and MC's behaviour has led the contact supervisor to intervene to protect C from distress and the pain associated with MC's careless handling: it is the need to manage MC not C that requires the attendance of two people at contact sessions.
31. The guardian posited the question as to what benefit, if any there was for C. It was apposite. The guardian concluded that C should not be denied the opportunity, albeit limited, of some relationship through his mother, with his family, heritage and culture. This limited contact, which relates to identity, may or may not have much significance for C; it is unlikely to be quantifiable given the limitation on C's ability to communicate and our inability to assess accurately his understanding of familial and social relationships. Nonetheless he has no less entitlement than any child to have the opportunity to maintain a connection with his family, heritage and cultural background and this court will not deny him that opportunity. Subject of course to his changing needs, best interests and physical health contact will take place once every six months, and not more than twice each year for a period of one hour on each occasion. Should MC continue to misuse the trips to the area in which C lives by seeking to undermine his placement or by trying to harass or threaten his carers it may be subject to further review and a reduction to one annual visit; or even less.
32. This is my judgment.