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LBH (A Local Authority) v KJ & Ors [2007] EWHC 2798 (Fam)

Judgment in care proceedings where the local authority was seeking to prove the mother's care of a seriously disabled child breached the s31(2) threshold criteria. Application successful.

The child concerned suffers from severe cerebral palsy, cannot sit up or feed unaided and will require long term care for all her needs. When her mother was admitted to hospital suffering from TB the local authority found that the child was living in unsuitable accommodation and so placed her in a residential unit, where she remains, despite the opposition of the mother.

In this judgment Hedley reviews whether the care the mother was able to give was inadequate and likely to cause significant harm to the child. He eventually found that the threshold criteria were reached but not before making some interesting remarks on attributability and reasonable care [para.s 19 - 22]. He notes that it cannot be right that a parent automatically falls foul of the threshold criteria where the local authority has not provided the support that could be expected, especially in the face of trying to care for a severely disabled child.

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Neutral Citation Number: [2007] EWHC 2798 (Fam)
BT07C10233
IN THE BARNET COUNTY COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 28/11/2007

Before :

THE HON. MR. JUSTICE HEDLEY
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Between :

L.B.H. (The Local Authority) (Applicant)

- and -

KJ (The Mother)
IH (The child) (by her guardian CJ) (Respondents)

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Mr Rex Howling (instructed by The Local Authority Legal Services) for the Applicant
Ms Melanie Johnson (instructed by Wilson & Co) for the mother
Mr David Marcus (instructed by the Guardian) for the child

Hearing dates: 7th, 8th & 9th November 2007
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Judgment

The Hon Mr Justice Hedley
This judgment is being handed down in private on 28th November 2007. It consists of ten pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

The Hon. Mr. Justice Hedley :
INTRODUCTION
1. This case has its origins in Somalia, something that is important for two reasons: first it suggests that many issues in this case may have a cultural dimension to them; and secondly that communication has been a real problem in the history of this case. When to that is added a child with multiple disabilities and complete dependence on others to meet all needs, the forensic cocktail becomes distinctly volatile in the context of contested care proceedings. It was for those reasons that I decided to reserve and then give judgment in open court though of course nothing may be published which might tend to identify the child concerned, her address or her school.

BACKGROUND
2. 'The mother' is aged 39. She was born in Somalia and essentially brought up alone by her mother. Aged 14 she was married for the first time to 'AM' and to that marriage her eldest daughter 'A' (now aged 22) was born. In 1983 'the mother' was divorced by 'talaq', and in the following year, Somalia then being in the grip of civil war, she and 'A' moved to this country. She contracted her second marriage to 'G' in 1992 and in the four years of marriage, three children were born namely 'B' (14) 'C' (13) and 'D' (11).

3. 'The child', the subject of these proceedings, was born of her mother's third marriage, in 1997 to 'AAH', on 10th March 1998. The marriage was short lived and was dissolved during the pregnancy. Of 'the child's' disabilities and needs much more requires to be said but for the purposes of the background 'the mother' applied for a housing transfer on medical grounds on 14th January 1999. It is said that her name now leads the list. A man called 'MA' featured in 'the mother's' life for a short while. He was violent and on a number of occasions the police were involved and twice he was prosecuted. In 2002 'the mother' was granted British Citizenship and in the same year married 'AK'. On 31st July 2006 he featured in a violent incident to which I must return. Although he lives separate and apart from 'the mother', he is still a feature of family life. He is the father both of 'E' (born 25th April 2006) and of the child whom she is now carrying.

4. The position today is that 'the mother' lives in the local authority's area with 'B', 'C', 'D' and 'E'. She has in fact lived there for many years. 'A' lives elsewhere with a relative, 'AK' lives locally and at present no other adult lives in the family home. 'The child' lived there until 24th April 2005 and since then, apart from the week of the February half term this year, has remained accommodated with the mother having contact.

THE PROCEEDINGS
5. These are proceedings brought by the Local Authority under Part IV of the Children Act 1989 in respect of 'the child' alone. The case had been proceeding in the F.P.C. and was listed for a final hearing on 6th November 2007 with a time estimate of four days. That trial was put in question since a Bench could not be found to sit for those four days. I happened to be sitting at Barnet County Court as part of my duties as F.D.L.J for Greater London and had space in my list. The case was accordingly transferred to the County Court and I heard it sitting as an additional judge of that court. An adjournment was applied for on the basis that the local authority care plan was incomplete (as undoubtedly it was) and so I decided rather than adjourn generally, to try only issues of threshold since they were in dispute.

THE LAW
6. It follows that it is the duty of the court to consider whether the local authority have established the threshold criteria in this case, the only means by which the welfare jurisdiction of the court could be engaged. That can only happen under Section 31(2) of the Children Act 1989 (the Act) if the Court is satisfied -

i) that the child concerned is suffering, or is likely to suffer significant harm; and,
ii) that harm or likelihood of harm, is attributable to –
a) the care given to the child, or likely to be given to him if the order were not made, not being what would be reasonable to expect a parent to give him; or
b) the child's being beyond parental control.

This provision has its classic exposition in the speech of Lord Nicholls of Birkenhead in Re H and R (Child Sexual Abuse) [1994] 1FLR 80 (HL). Those parts of his speech that deal with the burden and standard of proof are too well known to require detailed citation (though I bear them well in mind) but there are two passages which may well be of particular significance in this case. Having emphasised the need for proof of facts to sustain the threshold criteria, Lord Nicholls adds this –

"I must now put this into perspective by noting, and emphasising, the width of the range of facts which may be relevant when the court is considering the threshold conditions. The range of facts which may properly be taken into account is infinite. Facts include the history of members of the family, the state of relationships within a family, proposed changes within the membership of a family, parental attitudes, and omissions which might not reasonably have been expected, just as much as actual physical assaults. They include threats and abnormal behaviour by a child, and unsatisfactory parental responses to complaints or allegations. And facts, which are minor or even trivial if considered in isolation, when taken together may suffice to satisfy the court of the likelihood of future harm. The court will attach to all the relevant facts the appropriate weight when coming to an overall conclusion on the crucial issue."

The court is obliged to view the case on a wide canvass. Never is that more important than in a case such as this. Lord Nicholls also makes a pertinent observation about the policy which underpins this part of the legislation –

"These are among the difficulties and considerations Parliament addressed in the Children Act when deciding how, to use the fashionable terminology, the balance should be struck between the various interests. As I read the Act, Parliament decided that the threshold for a care order should be that the child is suffering significant harm, or there is a real possibility that he will do so. In the latter regard the threshold is comparatively low. Therein lies the protection for children. But, as I read the Act, Parliament also decided that proof of the relevant facts is needed if this threshold is to be surmounted. Before the section 1 welfare test and the welfare ' check list' can be applied the threshold has to be crossed. Therein lies the protection for parents. They are not to be at risk of having their child taken from then and removed into the care of the local authority on the basis only of suspicions, whether of the judge or of the local authority or anyone else. A conclusion that the child is suffering or is likely to suffer harm must be based on facts, not just suspicion."

That provides the framework within which the issues in this case have to be determined.

THE CHILD CONCERNED
7. In order to understand the relevance of some of the details of the history of this case upon which the evidence has focused, it is now necessary to set out in much more details something of 'the child' herself. She is now aged 9. She had suffered neonatal injuries in the form of some intercranial haemorrhaging. The consequence of that is that she has Microcephally, four limb bilateral spastic cerebral palsy with visual impairment and severe learning difficulties. She is unable to move or even sit up unaided, she has no intelligible speech and requires feeding directly by gastrostomy tube. In short she will need high level and long term personal care and is dependent on others for all her needs including the most intimate personal care.

THE MOTHER'S POSITION
8. Those needs now must be set in the context of the demands on 'the mother'. She is effectively a single parent with only a limited command of the English language. She has four other children at home and is pregnant. She is living in accommodation which all acknowledge is hopelessly inadequate. It has sleeping accommodation accessible only by stairs which means that 'the child' must either live downstairs or be physically carried upstairs. There is no bathroom on the ground floor which means that 'the child's' personal hygiene is dependent on bed baths. The accommodation is too small to install some basic equipment to help with moving and lifting. These, as everyone acknowledges, are formidable obstacles to care. It is common ground that for many care functions at least two adults are necessary.

9. There are furthermore a number of cultural factors that are in play in this case. There is anxiety that 'the mother' has not fully accepted 'the child's' disabilities or their lifelong implications. The mother finds it almost impossible to acknowledge that the care of her can sometimes simply be too much for her and that she needs both help and respite. The mother has a difficult relationship with professionals in terms of heeding advice and keeping appointments. That is exacerbated by her (understandable) disappointments in terms of housing, equipment and so on. That has led to what might appear irrational decisions like rejecting help because it is not as extensive as she would have wanted. Moreover, there are real communication problems, for 'the mother' has struggled to acknowledge the limitations of her command of English. On a day to day basis this may not greatly matter but when it comes to the complexities of the needs of 'the child' and how they are to be met, it can matter very much if details or nuances are missed. The mother has also been the victim of domestic violence to which she has not always reacted so as to recognise that it can have serious implications for the physical and emotional welfare of all her children. None of these matters are it is said unusual in the mother's culture but may be significant in this case.

HOW THE CHILD CAME TO BE ACCOMMODATED
10. The court now turns to how it was that 'the child' came to be accommodated on 24th April 2005. The general context has been set out in the previous paragraphs of this judgment dealing with her needs, the mother's difficulties and the cultural issues. The result was a good deal of suspicion between professionals and the mother and the widespread voicing of 'concerns' about 'the child'. In addition to the matters already raised, there were questions about the nature and extent of stimulation that 'the child' might receive at home. All this was compounded by the mother and some of the children getting tuberculosis. The matters are summed up in a note of a professionals' meeting on 9th February 2005 set out in the NSPCC chronology –

"Professionals meeting. OT expressed concern that the accommodation was not suited to meet 'the child's' needs and could not be adapted. The mother had lost faith in the system and refused to bring 'the child' to school. It was suggested that the mother should apply to housing as homeless. Housing were looking for suitable property but one was not available. Concern was raised that 'the child' had missed her TB appointments which were vital because of her condition and that the children were not attending school and were not getting education at home while they were ill."

That in my view was a pretty accurate picture of how things were at this time.

11. 'The child' was in fact accommodated because 'the mother' was admitted to hospital (with TB) as an in-patient. Once she was accommodated then all the concerns crystallised into a decision to maintain the accommodation. In fact the mother remained in ill health as well as being pregnant with 'E' and contact became somewhat sporadic for a while. On 29th March 2006 'the child' was placed with 'MB' where she has essentially lived ever since. This is a small three bed residential unit offering round-the-clock care as needed. 'The mother' has been consistently hostile to this placement. I rather think the main reason for that is that to the mother it appears as a very public statement of her inability to care for her own daughter and that is just too much for her. In fact 'the child' has flourished in that placement although it can never provide a permanent home for her.

THE SUBSEQUENT HISTORY
12. On 31st July 2006 there was a serious episode of domestic violence in which the mother was attacked by 'AK' with some violence. 'C' and 'D' attempted to intervene with the result that the mother escaped from the house but 'D' was assaulted. The police were called and both 'D' and her mother were treated at hospital. In the end mother and children withdrew all their allegations. Whatever their reasons may have been (and again no doubt there was a cultural element to it) it is hardly surprising that anyone who knew the family should have significant misgivings not least as to the potential danger posed to 'the child'.

13. In the summer of 2006 the foster carer raised the question as to whether 'the child' had sustained female genital mutilation, something that had undoubtedly happened to the mother. It was many weeks before this was mentioned to the mother and, although the concern turned out to be baseless, it did nothing to assist relationships. By December 2006 the local authority were beginning to plan for 'the child's' return home. This was not a course that received unanimous professional support but it was pursued because the mother wanted it and the local authority did not then think that they could refuse it. Much turns on this matter and it will have to be scrutinised in some detail. I need to start, however, with the context in which this rehabilitation was attempted.

THE ATTEMPTED REHABILITATION
14. As has been indicated, everyone recognised that her accommodation was seriously inadequate. It was decided to return 'the child' during the half term week when of course all the other children would be at home. Whilst this was doubtlessly well intentioned, the wisdom of hindsight suggests (and all now seem to accept) that this was not an ideal time and moreover that a phased return would have been better for all. In fact, it is not at all clear on what basis 'the child' was returned. The social worker thought this was for a trial week after which it would be reviewed. The care support had, however, been booked for 12 weeks and another worker thought she was doing a 6 week assessment. This was never brought to a head for at the end of the week 'the child' was re-admitted to hospital suffering from hypothermia and was thereafter voluntarily accommodated.

15. It had been contended by the local authority that that hospital admission had come about as a result of the want of care at home. However, that direct causal connection is no longer contended for as there has been a subsequent admission from 'MB's' care on the same grounds. The cause of the hypothermia remains unascertained. However that may be, the week was not a success not least because the centre of consistency in 'the child's' life, her school was not, of course, open during half term. The causes of the failure are inevitably controversial.

16. The mother says that in addition to the problems inherent in accommodation, she received inadequate support that week. Agency workers had been booked for two hours in the morning and the evening and other workers came in during the day for 'support' or 'assessment'. As I understand it none of the support package was intended to have a respite element. The local authority contends that the mother and family failed adequately to stimulate 'the child' as a result of which she slept for parts of the day but was awake at night and thus the mother rapidly became (as all accepted) exhausted. It is the fact, however, that 'the child' would, even if asleep, need to be turned every two hours at night. It was also contended that the mother was negligent over the hygiene of the gastroscopy wound which became infected. A further difficulty in the case was that the relevant contact supervisor did not made herself available to give evidence. As the evidence generally cast a doubt on her competence, I have concluded that no finding should be based on her written evidence.

THE THRESHOLD CRITERIA
17. As one might expect, the truth of what happened that week embraces much of what is contended for on both sides. In retrospect failure was probably inevitable. The combination of accommodation, half term, the support package, the demands of the family and the mother's personality combined to ensure failure. I have no doubt that the mother's attitude raised doubts in the local authority as to her commitment to care for 'the child' at home. I find that the mother was not wholehearted about this week, did not make the best use of the support made available and was more relaxed in her approach to hygiene in relation to dealing with 'the child' than acceptable medical standards required. At the same time it is also probable that had these failings not been present this particular attempt at rehabilitation would still have failed and ended in the re-admission to hospital.

18. When one stands back and looks at the whole picture in, say, the three years leading up to February 2007 and including that half term week, a number of failings on behalf of the mother became apparent. She was not as skilled as others are in stimulating 'the child'. She did not co-operate as she could and should have done with such services and support as were available, sometimes rejecting help on an apparently irrational basis. She did not acknowledge the difficulties that she has in sometimes understanding what was required and she did not attach the importance to meticulous hygiene that 'the child's' condition required. Moreover, she did not appreciate that harm to which 'the child' was exposed through her failure to deal properly with issues of domestic violence. Those failings have, however, to be seen in the context both of familial demands, her accommodation problems and those cultural issues that complicated matters for her.

THE ATTRIBUTABILITY REQUIREMENT
19. However, these findings are not the end of the matter for the court must return to its consideration of Section 31(2). It would be difficult to avoid the conclusion that 'the child' had suffered serious harm (the birth injuries alone would more than suffice) and it would be even more difficult on the totality of the evidence to avoid the conclusion that she was likely to suffer significant harm in the future. The matter that has exercised me is the 'attributability' issue, i.e. can it be demonstrated that this significant harm is attributable to the care "not being what would be reasonable to expect a parent give to him?" In particular I have been exercised by the question of what is 'reasonable' in the context of major and lifelong disability.

20. Perhaps one can refine the issue by indicating what the law cannot be. It cannot be the case that a single parent exposes herself to a compulsory state intervention in family life simply on the grounds that a particular child's needs are beyond the capacity of one parent (or indeed even two parents), however assiduously they devote themselves to the care of the child The only exception to that could be where a child can properly be said to be beyond parental control. They may (and usually will) have obligations to other children. It is usually strongly conducive to the welfare of a seriously disabled child to be brought up in a family with siblings. (Not least is that an advantage because thereby family is preserved beyond the death of parents). In those circumstances a disabled child may have to accept that the promoting of the emotional needs within a functioning family may involve some detriment in the achievement of their maximum personal potential. It is well recognised that sadly this tension between needs of family and disabled child is all too often destructive of family life and relationships.

21. Neither surely can it be the case that a local authority can fail to put in the support properly required to enable a child to be cared for at home (absent expert evidence that a child could never be cared for at home because of disability whatever reasonable support was provided) and then use that failure as grounds for compulsory intervention under Part IV of the Act. It would seem to me both that each would involve a violation of Article 8(1) (as all such interventions on the face of it necessarily must) and that such violation in those circumstances would not be justifiable under Article 8(2).

22. What then is one to make of the care that should reasonably be expected of a parent in a case such as this where the demands of a child are all-embracing, lifelong and unremitting? First of course one looks for unconditional love and commitment. Then one looks for those basic parenting skills that provide (with respite and professional support where necessary) for the basic physical and emotional needs of the child. That must include stimulation, compliance with any advised medical requirements and basic protection. All of that must be set in the context of the needs of siblings who are important emotional bulwarks for the disabled child Implicit, inevitably, in all this is an obligation to seek, consider and take advantage of expert advice and professional support (including respite) in the exercise of parental responsibility. Whilst a parent is entitled to accept or reject advice or support, they thereby incur the risk of that not being found to be 'reasonable' and thus to the opening of the threshold gateway. That said a parent cannot be said to be responsible for a falling below the standard of 'reasonable care' if the public authorities cannot or do not provide what would be reasonably necessary to support that parent.

CONCLUSIONS ON THRESHOLD
23. And so the court returns to the question as to whether, in the context of its findings on the evidence in this case and its understanding of the law, it can be said that the threshold criteria have been established here. In deciding that the court expressly recognises these matters: first, that there are the proper demands of the other children on the mother; secondly that her housing precludes the giving of the support necessary for 'the child's' care at home; thirdly, that the trial rehabilitation of 'the child' in February this year does not itself provide a fair test of the mother's capacity to parent; and fourthly that the support in fact offered over the years was less than would have been necessary comfortably to sustain a placement at home. Those matters need to be expressly recognised so that no artificial standard is applied to the mother's actual care of 'the child'. They also need to be recognised because this case has been bedevilled by expressions of 'concern' by professionals on all sides and at all times. It would be astonishing, given the needs of this child, if there were not a large amount of professional concern but I am anxious that, however prolific it may be, it is not confused with fact so far as both the threshold criteria and the disposal of this case is concerned. I am not confident that that distinction has always been appreciated.

24. Having made those allowances I am satisfied that the following matters are established as relevant to the threshold issue in this case. First the mother has not been as co-operative as she should have been with professional advice and support and decisions to reject it have sometimes been wrong and flat contrary to the interests of 'the child'. Secondly, I accept that the mother has not faced up to the true needs and demands of 'the child' and has throughout dealt with her reactively without proper consideration of how she should in fact be cared for. Thirdly, I think the mother lacks the requisite skills to stimulate 'the child' not least because I do not think she acknowledges the need for it. Fourthly, the mother's approach to male adult relationships and, in particular, the significance of violence within them, shows a serious lack of appreciation of its impact on her children emotionally and the physical risk posed to a defenceless child ('the child'). Fifthly, I find that the mother's approach to hygiene in relation to 'the child' is less astute than her medical needs require; that said, I attach less importance to this finding given the extraordinary difficulties over hygiene that the limitations of her housing impose. I am hesitant to find that these failing have of themselves caused significant harm to 'the child' in the past, though of course they must have contributed to it. I am, however, entirely satisfied that they are likely (and in my view highly likely) to cause significant harm in the future if they remain unaddressed. In those circumstances I conclude that the local authority have indeed established the threshold criteria under Section 31(2) so as to open the door to the welfare jurisdiction of the court.

THE WAY AHEAD
25. There are, however, some comments I want to add that may be thought relevant to future assessment and planning in this case. The first and most important is this. Where one is dealing with a young person like 'the child' it is essential to adopt a whole life view in planning. In other words she will need not only care but someone to take decisions for her indefinitely. Consistency in this realistically is only to be found in the family hence my stressing the importance of sibling relationships. Thus I would view with scepticism and alarm any care plan that did not make provision for the fullest involvement of the family (consistent of course with welfare) on the basis that at her majority it is principally to them that she will need to look. Secondly, I believe this mother has the capacity to change and learn and that she has at least the beginnings of an understanding that that is necessary. In that context I was much encouraged by movement during the hearing to greater co-operation. Thirdly the mother has to recognise, without pinning any blame upon herself, that the care of 'the child' is beyond her unaided personal resources. This means that she will need to develop a much less hostile and much more co-operative approach to welfare agencies generally. Again I believe that she has the innate capacity to do that. Fourthly the mother (and at present 'AK') have got to recognise and demonstrate recognition that their relationship has real implications for the welfare of these children. How they go about addressing that is of course a matter entirely for them but they clearly need to do so if 'AK' is to play a role in this family. I very much hope (and believe it to be possible) that when the disposal hearing comes before the court, 'the child's' life can be considered (and then lived) in a much more constructive adult atmosphere than it is at present.