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Hertfordshire County Council v H [2013] EWHC 4049 (Fam)

Application by local authority to withdraw care proceedings in circumstances where threshold not met.

The local authority had issued care proceedings in relation to a young boy, D, who was, at the time of the hearing before Parker J, aged 6 months. D's mother had a significant history of mental health difficulties involving depression and suicide attempts. She took an overdose of tablets when D was 2 days old. D had also undergone two life threatening events as a small baby and on investigation he was found to have subdural collections. The concern was that F's medical presentation was the result of some form of traumatic incident (possibly a shaking injury), coupled with, or independent from, a possible smothering injury or other abusive behaviour.

Parker J had directed that there be expert evidence provided by Dr Jayamohan (a neurosurgeon), Dr Ganeson (neurologist and part of the treating team), Dr Anslow (a well-known paediatric neuroradiologist) and Dr Morrell (consultant paediatrician with wide experience in child abuse and trauma cases with a particular interest in false illness syndrome). The evidence of the experts was such that (as was agreed by all parties) although trauma could not be excluded, it could not be established on the balance of probabilities to have occurred.

The local authority had included within its threshold document (which concentrated on the head injury / NAI allegations) two paragraphs about the mother's suicide attempt and mental health in general. However, it submitted that, absent the other findings it had previously sought, those grounds were not sufficient to satisfy the threshold, particularly bearing in mind the level of support it was offering to the mother. Parker J agreed with that analysis.

The Guardian was "hesitant" [paragraph 14] about the withdrawal of proceedings but left the matter to the Court. The Guardian was concerned that he did not have a clear understanding of the mother's psychological functioning and he would like to have that before the case concluded. Parker J commented that in her experience explanations for psychological difficulties could not be found and she did not consider it appropriate to adjourn the matter for this to be undertaken.

Parker J cited the case of London Borough of Southwark v B [1993], in which Waite LJ said:

"The paramount consideration …. is …. the question of whether the withdrawal of the care proceedings would promote or conflict with the welfare of the child concerned.  It is not to be assumed when determining that question that every child who is made the subject of care proceedings derives an automatic advantage from having them continue.  There is no advantage to any child in being maintained as the subject of proceedings that have become redundant in purpose or ineffective in result.  It is a matter of looking at each case to see whether there is some solid advantage to the child to be derived from continuing the proceedings." 

Parker J also recalled the comments of Bracewell J regarding Guardians' duties in circumstances where they disagreed with the withdrawal of proceedings in Re N (Leave to Withdraw Care Proceedings) [2000] 1 FLR 134. She also distinguished the instant case from S (a Child) v Nottingham City Council and Others [2013] EWCA Civ (in which the local authority had not been permitted to withdraw proceedings) on the basis that in this case there was no prospect of the local authority being able to satisfy the court that the threshold was met, whereas in Re S the child had been found to have suffered non-accidental injury.

Parker J levelled no criticism against the Guardian for putting his concerns before her, but did not consider that they provided the solid ground necessary to decline to accede to the local authority's application to withdraw.

Application granted.

Thomas Dudley, barrister, 1 Garden Court Family Law Chambers 

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Case No. WD13C00740
Neutral Citation Number: [2013] EWHC 4049 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL
Friday,  5th  July  2013

Before:

MRS  JUSTICE  PARKER
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Between:

HERTFORDSHIRE  COUNTY  COUNCIL
Applicant

and

H Respondent
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MR N O'BRIEN (instructed by Hertfordshire County Council County Hall, Hertford) appeared on behalf of the Applicant
MISS A GRIEF (instructed by Crane & Staples Solicitors, DX 30051 Welwyn Garden City) appeared on behalf of the Respondent Mother
MISS S KING
(instructed by R A Savage & Co, Solicitors DX 30064 Welwyn Garden City) appeared on behalf of the Respondent Father
MISS S PHIL-EBOSIE
(instructed by Knowles Benning Solicitors, DX 59213 Luton 1) appeared on behalf of the Guardian
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Transcription by
John Larking Verbatim Reporters
Suite 91, Temple Chambers, 3-7 Temple Avenue, London EC4Y 0HP
Tel: 020 7404 7464    Fax: 020 7404 7443
www.johnlarking.co.uk
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JUDGMENT
Friday,  5th  July  2013

JUDGMENT
MRS JUSTICE PARKER:
1.  This is an application, supported by the child's parents, by a local authority to withdraw care proceedings, which commenced earlier this year in relation to a little boy who is just over six months of age.  He is the first and only child of these young parents.  The mother has a significant mental health history of depression and of suicide attempts. She took an overdose of tablets when D was two days old.  That is the last episode of that kind of event.

2.  D underwent two life-threatening events as a small baby.  On investigation he was found to have subdural collections.  He was made the subject of these care proceedings and removed from the care of the parents and placed with foster parents.  It was obvious from an early stage in the proceedings – indeed, when the matter first came before me earlier this year – that the medical presentation did not appear to be as straightforward as is sometimes the case.  The concern was that D's medical presentation was the result of some form of traumatic incident (possibly a shaking injury), coupled with, or independent from, a possible smothering injury or other abusive behaviour.  The treating physicians were unclear.  I directed that there be three independent experts, Dr Jayamohan (a neurosurgeon), Dr Ganeson (neurologist and part of the treating team), Dr Anslow (a well-known paediatric neuroradiologist) and Dr Morrell (consultant paediatrician with wide experience in child abuse and trauma cases with a particular interest in false illness syndrome).

3.  In relation to the first presentation of D in February, Dr Ganeson said that on the clinical and radiological findings he could not say on the balance of probabilities that trauma was the cause of the episodes.  In relation to the second incident in March he said "on the balance of probability I do not think that this later episode can be attributed to trauma.  It is more likely that this episode was secondary to the severe gastro-oesophageal reflux or the cardio-arrhythmia", those both being conditions from which D suffers.

4.  Dr Jayamohan said in relation to the MRI scans taken in February 2013 that the signs were consistent with there being a small amount of blood within the brain matter. This was after a lumbar puncture had been performed on D.   He was not certain as to the cause of high signal changes.  He also noticed very small subdural collections, so there was a small amount of fluid over the surface of the brain.  He did not think that this was consistent with acute blood; it might be old blood or an effusion (fluid).  He favoured the latter view.  In his view, the appearances were in keeping with the after effects of lumbar puncture.  There was also a suggestion that the appearances might be consistent with being secondary to seizures.  In relation to the March presentation, there was no evidence of injury or ischaemic damage to the brain, and no evidence of injury to the spinal cord.  There was no evidence of a separate event which could have caused D to have seizure activity.  He thought that there was a possibility that some of the appearances were related to the birth process.  He maintained the view that the lumbar puncture was a significant event which could be responsible for the appearances.  It is unlikely, he said, that the appearances in March were chronic subdural haemorrhage.  He found that in February there was no evidence that pointed towards trauma of the brain.  In relation to the March appearances, it was possible that they could have been caused by non-accidental shaking events, but there was no indicator that made him feel that this cause was more likely than any other of the possible causes for collapse.  There was no indication of precisely what had caused the collapse.

5.  Dr Morrell (consultant paediatrician) considered that gastro-oesophageal reflux is the most likely cause of the Acute Life-Threatening Episodes, although these would not explain the origin of the subdural and the sub-arachnoid haemorrhages, of which there were other possible causes, including non-accidental injury.  Because of the absence of other evidence it would not be possible to state that the other causes were more likely than not to be the cause of the ALTEs.

6.  Dr Anslow's opinion is that the February scan did not show fresh blood.  He also thought that the lumbar puncture was an extremely important feature and thought that it was probable that the subdural collections resulted therefrom.  He could not identify any brain pathology or signs of recent trauma.  In March 2013 there was nothing to indicate a further traumatic event.  The subdural collection seen during the March 2013 admission was a rare but natural process of the collections becoming autonomous and enlarging.

7.  Dr Morrell has now seen Dr Anslow's opinion.  It has not altered his own opinion.

8.  I accept the analysis, with which all the parties concur, that whilst trauma cannot be excluded, it cannot be established on the balance of probabilities to have occurred.  If it cannot be established, and thus not proved, it is not the cause.

9.  There was one small mark noticed to D's neck on 19 February, the origin of which is unexplained.  It is suggested by Mr O'Brien that the mother's suicide attempt might suggest unreported trauma.  I do not think that is quite what Mr O'Brien means.  I am not being critical.  I think he means that the mother's mental health and suicide attempt could set the scene for circumstances in which a child came to be injured.

10.  Miss Grief, on behalf of the mother, submits to me that I should accept Dr Morrell's view that the most likely cause for the LTEs is gastro-oesophageal reflux and that lumbar puncture is the most likely cause for the subdural collections.  Dr Anslow uses the word "probable".  Dr Jayamohan could not explain them.  It is extremely significant that there is no other sign of brain trauma.  In relation to that last point, I comment that there can be cases of inflicted head injury where there is no other obvious sign of brain trauma.

11.  Miss Grief asks me to find that, on the balance of probability, there was a natural cause.  I do not think it would be helpful for me to apply the reverse burden of proof.  The local authority brings these proceedings and it is for the local authority to establish on the balance of probability that D has suffered inflicted harm.

12.  It is quite clear to me that on the basis of this evidence, which would constitute the evidence before me at the presently listed hearing in September next, the local authority could not satisfy the court that this was inflicted injury and, through Mr O'Brien, they accept that.

13.  In parallel with the medical investigations, the local authority has also conducted an assessment of the paternal grandmother.  The assessment was glowing.  I met her briefly in court last week.  I thought, on my admittedly brief meeting with her, that she seemed absolutely splendid and most reliable.  I understand that the local authority is extremely confident in the grandmother's ability to provide support for this young couple.

14.  The guardian is hesitant about, and certainly does not accede to, the withdrawal application but leaves the matter to the court.  The guardian is extremely concerned as to the impact of the mother's mental health on her ability to provide safe care for D.  I understand that concern, but I must approach this matter on a principled basis.  The first question is as to whether or not the threshold is established pursuant to section 31 of the Children Act 1989. 

15. I am confident that the mother's mental health problems cannot prove what is otherwise unprovable.  The most it can do is to set the scene to provide an explanation.  Is the mother's mental health in itself a ground to find that the threshold is or could be established, and to maintain September's hearing?  Miss Grief makes the powerful point that the threshold initially has to be established as at the date when these proceedings were commenced in early April 2013.  At that point the mother's last self-harm episode had been in January, immediately after D's birth, and had not at that stage been the trigger for local authority formal intervention through care proceedings. 

16.  It has been put forward on the father's behalf, and it is accepted by the local authority, that the father is a protective factor.  The guardian says that this is in doubt because arguments between this young couple precipitated the mother's self-harm episodes before D was born.  But those matters were not sufficient to trigger care proceedings either after D's birth. 

17.  The local authority has put in place a Child in Need Plan.  There is to be a meeting later this month at which the mother's mental health will be under scrutiny.  The mother has agreed to disclosure of her medical records and has agreed to transparency and to the free flow of information between the local authority and other agencies. The Local Authority after all, has statutory duties under section 17 of the Children Act 1989.  The mother has assured the local authority that she will continue to co-operate.  The guardian makes the valid point that this is a new approach by the mother which was not demonstrated in the past.  But, as I say, that was not sufficient to trigger intervention of itself.

18.  I recognise that in the 17 paragraph threshold document, which concentrates inevitably upon the head injury/NAI allegations, paragraphs 16 and 17 specifically refer to the mother's suicide attempt and to her mental health in general.  The local authority submits to me that, in itself, and  in the absence of  non-accidental injury, these asserted grounds are not sufficient to satisfy the threshold, particularly bearing in mind the current level of local authority support and intervention, and that the mother's mental health has to be seen not in conjunction with but separately from the alleged  injuries.  I agree with that analysis.

19.  There is no doubt that the mother has a significant mental health history.  She will no doubt have to continue to take advice from the local authority.  The local authority will have the capacity to intervene if there is considered to be a presenting risk to D caused in part by, or in conjunction with, the mother's and/or the father's lack of co-operation.  So, recognising entirely the anxieties of this conscientious guardian, the analysis of the only principled legal position leads me to the conclusion that I could not find threshold established at the moment simply on the basis of the mother's mental health problems.  In any event, the plan which the local authority has crafted together with the parents to provide support seems to me to be properly focused on the possible risks and the need for support. The mother has undergone for the first time a course of counselling, which may well provide some degree of protective factor.

20.  The guardian is concerned that he does not have a clear understanding of the mother's psychological functioning and that he would like to have that greater understanding before he lets go of this case.  My experience is that often explanations for psychological difficulties cannot be found, and I do not think it is appropriate to adjourn these proceedings for this to be undertaken.

21.  All parties agree that this application to withdraw is governed by Family Procedure Rule 29(4) and that it is a welfare decision.  In London Borough of Southwark v B [1993] 2 FLR 559, Waite LJ said:

"The paramount consideration …. is …. the question of whether the withdrawal of the care proceedings would promote or conflict with the welfare of the child concerned.  It is not to be assumed when determining that question that every child who is made the subject of care proceedings derives an automatic advantage from having them continue.  There is no advantage to any child in being maintained as the subject of proceedings that have become redundant in purpose or ineffective in result.  It is a matter of looking at each case to see whether there is some solid advantage to the child to be derived from continuing the proceedings." 

22.  In Re N (Leave to Withdraw Care Proceedings) [2000] 1 FLR 134, Bracewell J said: 

"In considering the …. application the guardian's duty is to safeguard the interests of L and she has a duty to put before the court her view as to whether L's welfare would be promoted or harmed by the withdrawal of proceedings.  I agree the guardian should think long and hard before opposing an agreement between the local and the parents if it appears to be sensible and if it appears to protect the child …. I recognise that courts should be slow to differ from the careful decision-making of the local authority and should take into account the reluctance of a local authority to continue with proceedings when they do not wish to have an order.  However, once the application has been made, the decision of whether to proceed is that of the court and not that of the local authority, the guardian or any other party.  I accept that any party opposing (which in this case is the guardian) must advance solid cogent reasons …."

23.  In S (a Child) v Nottingham City Council and Others [2013] EWCA Civ, the local authority was not permitted to withdraw.  However, that case was different from this, because in this case I have formed the view that there is no prospect of the local authority being able to establish section 31 on the evidence before the court.  In Re S the Court of Appeal set aside permission to withdraw because the judge found that the child had suffered non-accidental injury, but had not recognised that although the pool of perpetrators was unknown, this gave rise to a welfare question of how the child was to be protected from the risk of further non-accidental injury from a person or persons unknown.  I accept that that is an important and significant difference.

24.  I have taken fully into account the guardian's anxieties.  I do not criticise either the guardian or Miss Phil-Ebosie for putting them before me.  But on the analysis I have conducted I do not consider that those anxieties provide the solid ground to decline to accede to the local authority's application to withdraw.  Accordingly, I grant the application.