England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Sitting Remotely
		11/02/2021

Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties' representatives by email. The date and time for hand-down is deemed to be at 10.30am on 11 February 2021.

Mr Justice MacDonald:

1. This is the fourth judgement I have delivered in this matter. At the beginning of my first judgment (see Lancashire CC v G (Unavailability of Secure Accommodation) [2020] EWHC 2828 (Fam)) I recalled the maxim that the measure of a society can be obtained from how that society treats its most vulnerable members, citing the formulation adopted by Nelson Mandela on 8 May 1995 that "there can be no keener revelation of a society's soul than the way in which it treats its children".
2. Approaching six months on from the commencement of these proceedings under the inherent jurisdiction of the High Court on 28 August 2020, it is possible to apply this illuminating metric to our society by reference to the extent to which G's acute and complex emotional and behavioural needs have been met. The scales tip very heavily against us.
3. Nearly six months after the issue of proceedings, after eleven hearings before the Family Division of the High Court, after the repeated transmission of the judgments of this court to the Rt Hon Gavin Williamson CBE MP, Secretary of State for Education, Vicky Ford MP, Minister for Children and to Alex Chalk MP and after the expenditure of some £26,000 of public money G, a highly troubled and vulnerable young woman with multifaceted emotional and behavioural difficulties and at high risk of serious self-harm or suicide, still only has available to her a sub-optimal unregulated placement that all parties recognise is not equipped fully to meet her acute and complex emotional and behavioural needs and which the Children's Guardian remains unable to endorse as being in her best interests.
4. Within this context, I am again today asked by the local authority to authorise the continued deprivation of G's liberty in what was always intended to be, and which remains six months after the institution of these proceedings, a temporary emergency placement designed to last 28 days pending the identification of a permanent, regulated placement that is able to meet G's highly complex needs. Whilst required by law to make my decision having undertaken a careful assessment of those welfare needs and by applying the lodestar that is the paramount nature of G's best interests, the reality is that I am again today reduced to little more than a rubber stamp in circumstances where, as Mr Jones submits, the continuing lack of options before the court essentially obviates the courts ability to apply the welfare test.
5. At this hearing G remains represented by Mr Michael Jones of counsel, through her Children's Guardian. The local authority is represented by Ms Samantha Bowcock of Queen's Counsel. G's mother, N, does not appear and is not represented. The court excused the attendance of the interveners in this matter, NHS England and the Lancashire and South Cumbria NHS Foundation Trust.

BACKGROUND

6. The developing background to this matter is as set out in my first three judgments in this matter (see Lancashire CC v G (Unavailability of Secure Accommodation) [2020] EWHC 2828 (Fam), Lancashire v G (No. 2)(Continuing Unavailability of Secure Accommodation) [2020] EWHC 3124 (Fam) and Lancashire v G (No. 3)(Continuing Unavailability of Secure Accommodation) [2020] EWHC 3280 (Fam)). Whilst, again, it is not necessary to repeat that background in detail here, it is once again important to deal in some detail with the extent to which G's behaviour has further deteriorated since this matter was last before the court and to outline the developments that have led the local authority now to agree with the Children's Guardian regarding the nature of the appropriate regulated placement provision for G (the local authority having previously advocated secure accommodation pursuant to s.25 of the Children Act 1989 as against the view of the Children's Guardian that a regulated non-secure placement where therapeutic input can be provided would best meet G's welfare needs).
7. With respect to the extent to which G's behaviour has further deteriorated since this matter was last before the court, it is important to recall that G's current presentation occurs within the context of an already extensive history of self-harm and emotional distress on the part of G. Following the breakdown of her long term foster care placement in January 2020 G had twenty admissions to hospital due to self-harming behaviour and suicidal ideation. By August 2020 G had written nine letters in which she stated a desire to kill herself. The course of this extremely concerning period is set out in more detail in my first judgment in this matter (see Lancashire CC v G (Unavailability of Secure Accommodation) [2020] EWHC 2828 (Fam)).
8. Sadly, but as anticipated clearly by the professionals involved with the care of G, her emotional state and behaviour continued to deteriorate. In the context of noting in my second judgment (see Lancashire v G (No. 2)(Continuing Unavailability of Secure Accommodation) [2020] EWHC 3124 (Fam)) that the social worker was at that time noting that G's behaviour was beginning to exhibit the early stages of a pattern that comprised escalating behaviour culminating in crisis, in my third judgment (see Lancashire v G (No. 3)(Continuing Unavailability of Secure Accommodation) [2020] EWHC 3280 (Fam)) I noted that the following incidents detrimental to G's welfare had occurred:

i) G had begun to restrict her food intake and was reporting that following her evening meal she is making herself sick.

ii) At midnight on 12 November 2020 G absconded from placement. G later apologised.

iii) On 21 November 2020 G punched the car, the car door and the window.

iv) On 24 November 2020 G walked off from staff on two occasions.

v) Over four evenings prior to 25 November 2020, G barricaded her bedroom door shut.

vi) On 25 November 2020 G attempted to strangle herself with a belt like item and disclosed that she had self-harmed by cutting herself on her legs and arms, using the glass from a picture frame. G made repeated threats to kill herself. These threats culminated in G tying string / laces tightly around her neck, necessitating these being cut from her neck with a ligature knife and an ambulance being called. G repeated these actions later on the same evening. Whilst the ambulance was awaited for a second time, G again attempted to strangle herself with a sock. G then smashed up her bed.

vii) On 26 November 2020 G handed over a number of items she had secreted in order to self-harm, admitting again that she had engaged in self-harm. G then tried to strangle herself with a dressing gown rope, which staff again had to cut from her neck with a ligature knife. On this occasion it was not necessary to call an ambulance.

9. To this bleak litany of acute emotional distress, self-harm and attempted suicide must now be added the following incidents that have occurred since the court handed down its third judgment following the hearing on 27 November 2020:

i) On 1 December 2020, G swallowed the liquid from an E-cigarette, together with the coil part of the device. She said she planned to end her life. She subsequently tied a sock around her throat and pushed another sock into her mouth. She was taken to hospital where she had an x-ray which was clear.

ii) On 7 December 2020, G informed staff at her placement that she had accidentally swallowed a razor blade that was part of an art set that she owned. She was taken to hospital, against her wishes, where an x-ray revealed several coins in her stomach as well as what looked like a drawing pin rather than a razor blade.

iii) Following the hearing on 11 December 2020, G continued to place herself at risk of harm through swallowing objects, usually metal, that she has been able to obtain surreptitiously.

iv) On 6 January 2021 G reported on one occasion passing a screw, washing it and then re-swallowing it.

v) On 30 January 2021 G told staff at her placement that she had swallowed something. She had also smeared her faeces in her bedroom. She was taken to hospital but discharged without treatment or an x-ray.

vi) On 31 January 2021 G swallowed three screws which she had extracted from a plug socket and a heater switch. She also ripped up her bedding in an attempt to make ligatures.

vii) On 1 February 2021 G was taken to hospital having reported that she had swallowed two batteries from a remote- control unit. She was x-rayed and the batteries, two screws and two circular plastic pieces were identified. Following her discharge on that date, she later reported that she had swallowed metal eyelets from her clothes.

viii) G's nutritional intake has varied with her reporting weight loss of around 9lb.

10. As at the date of this hearing, G has once again been admitted to hospital following further attempts at self-harm. Within the foregoing context, Ms Bowcock has informed the court that G's current placement is in an even more precarious situation than previously, with difficulties emerging in how staff have related to G within the context of the highly stressed environment created by G's acute level of need.
11. With respect to the developments that have led the local authority now to agree with the Children's Guardian on the nature of the appropriate regulated placement provision for G, G has now been the subject of extensive assessment with respect to her presenting behaviour and the nature and extent of her welfare needs, having been assessed by a variety of professionals over the course of her placements and her admissions to hospital.
12. G has been under the care of East Lancashire Child and Adolescent Services for a significant period of time. ELCAS diagnosed G with Post Traumatic Stress Disorder (hereafter PTSD). Dr Ahmad, a Child and Adolescent Psychiatrist with ELCAS assessed G as showing clear indications that she will develop a personality disorder and will remain vulnerable to acting out and deliberate self-harm in the future. Dr Beck, also with ELCAS, has had limited success in engaging G, limiting the ability to gain a full picture of her emotional health. Whilst placed at the [placement] in May 2020, G was seen by a Clinical psychologist, Dr Nokling, who described G as being incredibly complex, avoidant and very difficult to engage. Dr Nokling considered that G required inpatient treatment or, if that could not be accessed, placement in a secure unit or, at the very least, a solo bed therapeutic provision. Following her detention under s.2 of the Mental Health Act 1983 on 8 May 2020 the Mental Health Team assessed G as not meeting the requirements for a Tier 4 psychiatric bed.
13. Following G's admission to hospital under s.2 of the Mental Health Act 1983 in October 2020, the psychiatrist and multi-disciplinary team working with G considered that G's presentation was driven by behaviour and the assessment concluded that she has no underlying diagnosable mental disorder which requires clinical treatment in a hospital setting. The clinicians engaged with G suggested (in line with Dr Ahmad's working hypothesis articulated in May 2020) that she has developed an emerging personality disorder and will need to receive support from appropriate mental health services.
14. Within this context, a report was commissioned from Dr Oppenheim, Consultant Child and Adolescent Psychiatrist. That report was received on 9 December 2020. Dr Oppenheim concluded that the source of G's difficulties is very complex from a diagnostic and treatment perspective. Within that context, Dr Oppenheim recommended either a secure placement with intensive CAMHS provision or a tier 4 mental health bed with low secure services, which could only be achieved through an adult mental health referral pursuant to section 3 Mental Health Act 1983, the criteria for which Dr Oppenheim believed were established. She considered that either type of placement would meet G's needs, given the urgency of her situation, and that the duration would likely need to be at least six months, accompanied by careful step- down planning. Dr Oppenheim also recommended that G be the subject of a speech and language assessment, a repeat cognitive assessment by an Educational Psychologist and a sensory assessment by an Occupational Therapist when in placement.
15. As I have noted, at the time the report of Dr Oppenheim was received, G was again admitted to hospital where an x-ray had revealed several coins in her stomach as well as what looked like a drawing pin. In a manner indicative of the complexities attendant on meeting the welfare needs of a child with G's presentation, Dr Oppenheim's report, which was disclosed to the doctors at the hospital responsible for G's care, led to a disagreement between professionals as to the appropriate way forward. In the light of the report of Dr Oppenheim, G's circumstances and the unavailability of a secure placement, the local authority, supported by the Children's Guardian, contended that urgent consideration must now be given by the mental health team to making G the subject of an application for admission for treatment pursuant to s.3 of the Mental Health Act 1983. However, the treating clinicians disagreed with Dr Oppenheim's view that G met the criteria for admission under the Mental Health Act 1983 or that a Tier 4 mental health bed with low secure services was appropriate for G. In light of this disagreement, I invited NHS England and the Lancashire and South Cumbria NHS Foundation Trust to intervene and listed the matter for a further hearing.
16. On 12 January 2021 a hearing took place at which NHS England and the Lancashire and South Cumbria NHS Foundation Trust were represented. At that hearing, it was agreed by all parties that that the detention of G in hospital for treatment was not appropriate because of the risk of an unplanned discharge leading, almost inevitably, to there being nowhere suitable to place her and because the therapeutic treatment that G requires would not be available in a hospital setting. Within this context, the parties re-confirmed their view that G's welfare required a regulated placement in which her acute and complex emotional and behavioural needs could be met by appropriate therapeutic input.
17. Within the foregoing context, since the last hearing before this court, G has also been assessed by Dr Harper, a clinical psychologist from FCAMHS. Whilst Dr Harper was not able to see G, within the limitations imposed by G being unwilling to engage with professionals Dr Harper opines that it is likely that G has an insecure attachment style which impacts negatively on her internal working model. As a result, Dr Harper considers that G is likely to experience overwhelming feelings of shame, leading to expressions of distress which manifest in the behaviour summarised above. In the circumstances, Dr Harper makes the following recommendations regarding a regulated non-secure placement where therapeutic input can be provided to meet G's welfare needs:

i) A placement with experience of trauma informed care using a close knit and consistent team of trauma informed professionals to support G.

ii) A placement with a robust support plan to manage G's risky behaviour.

iii) A placement able to provide ligature proof facilities, a structured assessment of violence in youth and a fire setting assessment.

iv) A placement that will provide relational and procedural security.

v) A placement that is able to provide social stories work to assist G to understand the consequences of risky behaviour.

vi) An occupational therapy assessment in relation to G's sensory needs and internal triggers for her challenging behaviour.

18. It is in the foregoing context that the local authority has moved to agreeing with the position adopted throughout these proceedings by the Children's Guardian as to the nature of the placement that will best meet G's welfare needs. Namely, a regulated non-secure placement with therapeutic provision to address G's acute and complex emotional and behavioural difficulties. However, the central difficulty in this case remains stubbornly resistant to resolution.
19. Whilst it is advantageous that the local authority and the Children's Guardian are now ad idem on the nature of the regulated placement that will best meet G's welfare needs, there has been, and remains a shortage of both the regulated placement solution advocated until now by the local authority, namely secure accommodation for the purposes of s.25 of the Children Act 1989, and the regulated placement solution advocated by the Children's Guardian, namely a regulated non-secure placement where therapeutic input can be provided.
20. Within this context, whilst the court is no longer required to determine the issue between the local authority and the Children's Guardian as to the nature of the appropriate regulated placement in this case, the central problem of acute lack of regulated placements remains. As matters stand, in the same way as there were no secure accommodation places to accommodate G, and despite the local authority having continued its diligent search, there are no regulated non-secure placements in the jurisdiction available and able to take G. A report from the Mental Health Access Line and Central Line Team dated 2 November 2020 confirms that therapeutic intervention for G cannot begin until she is placed in a settled, long term placement.

LAW

21. The law that the court must apply when considering whether to authorise the restriction of a child's liberty under the inherent jurisdiction of the High Court is set out in detail in my first judgment in this matter and, once again, I do not repeat it here. In deciding whether to continue to authorise the deprivation of G's liberty in her current, unregulated placement at present the court may grant such an order under its inherent jurisdiction if it is satisfied that the circumstances of the placement constitute a deprivation of liberty for the purposes of Art 5 of the ECHR and if it considers such an order to be in the child's best interests.
22. In light of G's continuing predicament, I also pause to note that G has a right to respect for her psychological integrity and mental health as an aspect of her right to respect for private and family life under Art 8 of the ECHR. In Bensaid v United Kingdom (2001) 33 EHRR 205 the ECtHR observed as follows regarding the position in this regard:

"Not every act or measure which adversely affects moral or physical integrity will interfere with the right to respect to private life guaranteed by Art 8. However, the court's case-law does not exclude that treatment which does not reach the severity of Art 3 treatment may nonetheless breach Art 8 in its private life aspect where there are sufficiently adverse effects on physical and moral integrity. Private life is a broad term not susceptible to exhaustive definition. The court has already held that elements such as gender identification, name and sexual orientation and sexual life are important elements of the personal sphere protected by Art 8. Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. Art 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world. The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life."

23. The right of the child to respect for psychological integrity as an element of the Art 8 right to respect for private and family life will, as a constituent element of the child's Art 8 rights, carry with it an element of positive duty with respect to measures designed to secure respect for the child's psychological integrity (see Stubbings v United Kingdom (1996) 23 EHRR 213). Finally, the child's right to psychological integrity as an element of the Art 8 right to respect for private and family life falls to be interpreted having regard to the United Kingdom's obligations as a signatory to the United Nations Convention on the Rights of the Child, Art 39 of which provides as follows:

"States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child."

DISCUSSION

24. G's emotional and behavioural welfare needs have been identified from the outset of these proceedings. Whilst to date the local authority has argued that those welfare needs are best met by a regulated placement comprising secure accommodation for the purposes of s.25 of the Children Act 1989 and the Children's Guardian has argued for a regulated non-secure placement with therapeutic input, the need for a regulated placement to meet G's complex needs has been clear from the very outset. G's acute and complex emotional and behavioural welfare needs cannot begin to be addressed until she has the benefit of the stability and security that derives from a long term regulated placement. Whilst waiting for a regulated placement that can meet her needs, G has continued to express a wish to end her life and to inflict physical harm on herself. It is plain that G is at present in intense and enduring emotional pain, the accounts of which should move anyone reading them.
25. Notwithstanding this, and as I have noted, six months and eleven court hearings on from the proceedings being issued in August 2020, the position remains that there is no regulated non-secure placement anywhere in the jurisdiction able to take G. The cost to the public purse of this ongoing lack of resources is substantial. In my second judgment (see Lancashire v G (No. 2)(Continuing Unavailability of Secure Accommodation) [2020] EWHC 3124 (Fam)) I noted that the cost to the public purse to date of placing the High Court in what is, essentially, a regulatory role by reason of the acute shortage of clinical provision for placement of children and adolescents requiring assessment and treatment for mental health issues within a restrictive clinical environment, of secure placements and of regulated non-secure placements stood at £17,000. That figure now stands at over £26,000, the cost in this case of failing to achieve any meaningful resolution for G. This figure does not include the cost to the public purse of holding eleven hearings before the High Court. The cost to G's welfare of this ongoing lack of resources is infinitely more acute.
26. All this means that, once again, the binary choice forced upon the court is to refuse the continued authorisation of the deprivation of G's liberty in an unregulated placement, which will result in her discharge into the community where, I remain satisfied, she will almost certainly cause herself serious and possibly fatal harm, or to authorise the continued deprivation of G's liberty in her current unregulated placement. A placement that all parties agree is not able fully meet her needs and which, as each hearing passes, the evidence demonstrates is becoming more and more precarious. Within this context, the fait accompli presented to the court, and that I have described in each of my previous judgments, is now rendered in the starkest relief yet.
27. Doing the best I can to again apply the applicable legal principles, on the basis of the evidence before the court, I remain satisfied that in the unregulated placement in which G is currently placed she is deprived of her liberty for the purposes of Art 5 of the ECHR. The restrictions that will continue to be imposed on G in that placement remain as they did when I last considered this case, namely:

i) Locked car doors when being transported to and from the placement with three to one supervision.

ii) Three to one supervision at all times when in the placement.

iii) The doors in the placement will be locked where there may be a risk to G and staff and due to the risk of arson.

iv) G will be escorted whenever she is away from the placement.

v) Staff will use reasonable and proportionate measures to ensure that she does not leave the placement and to return her to the placement if she does leave.

vi) Reasonable and proportionate measures may be used to restrain G when she is distressed.

vii) G will not be permitted access to her mobile phone.

viii) G will be subject to a 'waking watch' every ten minutes during the night.

28. In my judgment, the restrictions that I have summarised above will mean that G remains subject to continuous supervision and control within the placement and is not free to leave the same. I am further satisfied that G is unable to consent to the deprivation of her liberty.
29. With respect to best interests, as I have observed repeatedly over the course of the last three judgments I have delivered in this matter, the current acute shortage of regulated placements able to meet the welfare needs of children in the position of G renders the proper application of the best interests principle in cases of this nature extremely difficult. Once again, whilst required to make my decision having undertaken a careful assessment of G's global welfare needs and having applied the lodestar that is the paramount nature of G's best interests, the fact that there is only one placement option before the court means that the test applied by the court comes far closer to being one of necessity than it does to being one of best interests, the continuing unavailability of the regulated provision that G requires meaning that the court can only rely on the barest considerations of safety in making its decision, rather than the global welfare assessment it should be conducting in order properly to inform its decision as to best interests.
30. The judgment of the Supreme Court in the appeal against the decision of the Court of Appeal in T (A Child) [2018] EWCA Civ 2136 is awaited. However, as in previous judgments, in the foregoing circumstances I am again left asking myself whether, where there remains, six months after the commencement of proceedings, only one sub-optimal, unregulated placement option open to the court, the court is really exercising its welfare jurisdiction by reference to G's best interests if it chooses that one option, or if the court simply being forced by necessity to make an order irrespective of welfare considerations. If the latter, then it is difficult to see how the decision I have made can be lawful by reference to the current law governing the use of the inherent jurisdiction to authorise the deprivation of a child's liberty.
31. The bleak reality in this case however, is that G's current placement continues to represent the only option for keeping G safe in the broadest sense. In this context, in determining to authorise the continued deprivation of G's liberty in that placement, I have again in particular borne in mind the following information concerning the safeguarding arrangements for the placement, which information remains central to my feeling able to maintain the authorisation notwithstanding the grave reservations I have expressed above:

i) There remains a multi-disciplinary team around G comprising a Home Treatment Team, the [support team], the adult Mental Health Team, the Children Looked After nurse, the police and Children's Social Care.

ii) Following a multi-disciplinary meeting on 20 January 2021 a dedicated team to support G has been formulated.

iii) To seek to avoid the need for any crisis management, the multi-disciplinary team have compiled and distributed risk management plans which are geared at managing risky behaviours. As I noted in my last judgment, the completed documents have been shared with all parties and the Mental Health and Home treatment team.

iv) G has a self-harm management plan.

v) The local police officer has completed a trigger plan for officers when an emergency call is made and how best they deal with G in a crisis situation and health services and the local authority have supported this work.

vi) The police, the local NHS Health Trusts and the North West Ambulance service have been alerted regarding the significant risk G poses to herself and others and alerts have been placed on their systems.

vii) Weekly multi-agency meetings are held to review the risk management plans in place with respect to G and to reflect and respond to the changes in her behaviours and presentation.

CONCLUSION

32. In the circumstances I have set out above, I once again and wearily must authorise the continued deprivation of G in an unregulated placement that is not fully equipped to meet her complex needs by reason of the fact that I have no other option but to do so. I make clear that I consider that I can say that the placement is in G's best interests only because it is the sole option available to the court to prevent G causing herself serious and possibly fatal harm. Even then, it is clear that the placement is increasingly struggling to achieve even that limited goal. As has been the case each time this matter has come before me in the past number of months, I make the decision I do because I am left with no choice.
33. In this case, I fear it is increasingly easy to chart the likely course for G over the next number of weeks and months having regard to the evidence that is before the court if a regulated placement capable of meeting fully G's needs is not found. The professionals are increasingly concerned with respect to G's regular attempts to harm herself and for the continued viability of what is already an unsuitable placement for G. G continues to swallow dangerous objects and to tie ligatures around her neck. Within this context, whilst my judgments to date are comprised of the mournful accounts of the self-harming behaviour by which G expresses her acute and enduring emotional pain, I am increasingly worried that, absent a suitable placement being found, it will be the sad responsibility of this court to deliver a judgment that records with respect to G a greater tragedy still.
34. As a judge, I must assiduously avoid involving myself in matters that are properly the purview of Parliament. Likewise, the judicial role is not that of the polemicist. I have however, taken the judicial oath. In doing so (and as recalled by Sir James Munby P in a similar case in Re X (A Child)(No 3) [2017] EWHC 2036 (Fam)) I promised to do right by all manner of people according to the laws and usages of this realm. It is very hard, if not impossible, to do right by G, to keep her safe and to work to relieve her enduring and acute emotional pain, when the tools required to achieve that end are simply unavailable to this court. As I have commented in my previous judgments, this places the court in the invidious position of being required by the law of this realm to make decisions that hold G's best interests as the court's paramount consideration but being effectively disabled from doing so by an ongoing and acute lack of appropriate welfare provision for a constituency of the country's most needy, most vulnerable children.
35. As with my previous judgments, I shall once again direct that a copy of this judgment be sent forthwith to the Children's Commissioner for England; to the Rt Hon Gavin Williamson CBE MP, Secretary of State for Education; to Sir Alan Wood, Chair of the Residential Care Leadership Board; to Vicky Ford MP, Minister for Children; to Isabelle Trowler, the Chief Social Worker; and to Ofsted. I will also direct that a copy of the judgment is sent forthwith to the Lord Chancellor and to Alex Chalk MP, Parliamentary Under Secretary of State for Justice. The court has now received replies from Vicky Ford MP and from Ofsted in response to previous judgments sent to them. Whilst the court is, of course, grateful for those considered responses to the issues raised in the previous judgments in this case, those responses have not resulted in any appreciable improvement in G's situation.
36. That, such as it is, is my judgment.