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Re R [2018] EWFC 28-1

Judgment of Baker J in care proceedings concerning an 11 year old girl who suffers from a number of profound disabilities and will need care and support for the rest of her life. Final care order made and arguments for an interim care order rejected.

In these care proceedings, the Court was concerned with R, a girl, aged 11 at the time of the hearing. As a result of her disabilities, which include a diagnosis of Rett's syndrome, R will require care for the rest of her life. Until recently, her mother had been caring for her. R's father visits R when he can and pays financial support.

R was admitted to hospital on 8 May 2017 and suffered a life-threatening event on the evening of 11 May 2017. Following periods in hospital, a hospice and a specialist residential placement, R was discharged home in late July 2017. In August 2017, a crisis arose which led to the local authority initiating care proceedings. The crisis involved an apparent refusal by the mother to approve giving antibiotics to R. An interim care order was granted and R was returned to the specialist residential placement, where she remained under the auspices of the ICO. The matter was transferred to the High Court; there was a suspicion at this stage that the mother, believing that it was not in R's best interests to stay alive, might obstruct her treatment.

The heart of this case as to threshold was the mother's reaction to the life-threatening event on 11 May 2017. In finding threshold met, Baker J makes a series of factual findings as to the mother's behaviour through June – July 2017 as well as incidents occurring in December 2017. Baker J held, inter alia, that the mother's decisions were chaotic and not in R's best interests, that R was at risk of significant harm as a result of her refusal to consent to the giving of medically prescribed antibiotics, that the mother had not always followed advice concerning R's treatment and that the mother's view, at the commencement of the proceedings, that R's quality of life was so poor that her treatment should be restricted in the event of a further life-threatening event, would mean that there was a likelihood that R would suffer significant harm if such an event were to occur.

All the parties accepted the expert opinion of Dr. Gardner as to both analysis and the recommendations as to the type and level of "attunement" work which the mother would have to undertake, which included a recommendation for long-term psychodynamic psychotherapy or psychodynamic counselling. All accepted that the mother could not resume care of R at the time of the hearing. The principal issue between the parties was whether the court could conclude that there was no prospect of the mother resuming care of R in the short and medium term until she had completed psychotherapy. The second principal issue was whether the court should make a full care order, as proposed by the Local Authority and ultimately supported by the Guardian, or whether the court should make a further interim care order and list the matter for further review after the mother had completed her attunement work, as argued for by the mother.

Baker J. noted that the Local Authority's care plan went through a number of iterations. During the course of the hearing, an issue arose as to funding of psychotherapy; the Local Authority ultimately committed to funding this, if not funded by healthcare and/or adult services. Whilst the Local Authority's care plan was supported by the Guardian and the Father, the mother asked for a chance to show that her care for R could be consistent.

As for the issue, of full v. interim care order, Baker J. sets out some of the case law to which he was referred. The Local Authority's case, supported by the Guardian, was that the Court had all the evidence to make a final care order. On behalf of the mother, it was argued that a delay to the proceedings to allow for the attunement work would in fact positively benefit R's welfare interests. R's father was not opposed to an interim care order.

Ultimately, Baker J concluded that the care plan produced by the Local Authority, which was for R to remain at the specialist residential placement, represented the best outcome for R in the circumstances. He found that the evidence clearly established that it would not be in R's best interests to return to live with the mother in the short or medium term. He saluted the Local Authority's commitment to funding psychotherapy or psychodynamic counselling for the mother, noting that he could not recall a case where this had happened. Whilst accepting that this was an exceptional case, Baker J. concluded that this case falls squarely within the category of cases in which the court (applying Re S, Re W, should make a final order; he held that "it is not appropriate for the court to extend proceedings in order to exercise a supervisory role."

Baker J concluded his judgment by acknowledging the commendable progress made by the mother and paying tribute to her for all that she has done for R in the past. 

Summary by Oliver Woolley, barrister, 1 Garden Court Family Law Chambers

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.

Neutral Citation Number: [2018] EWFC 28
Case No: EX17C00092

Sitting at Exeter

The Combined Court Centre
Southernhay Gardens

Date: 09/02/2018

Start Time: 14.30   Finish Time: 16.05

Page Count: 50
Word Count: 13820
Number of Folios: 193


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J (1)
S (2)
R (by her children's guardian) (3)
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AIDAN VINE QC & JAMES REES (instructed by local authority solicitor) for the Applicant
& SARAH POPE (instructed by Rosie Bracher Solicitors) for the first respondent Mother
(instructed by Andrew Jay and Co) appeared for the second respondent Father
(instructed by Ian Walker Family Law and Mediation Solicitors) appeared for the Guardian
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Digital Transcription by Marten Walsh Cherer Ltd.,
1st Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP.
Telephone No: 020 7067 2900. Fax No: 020 7831 6864 DX 410 LDE

1. These proceedings concern a remarkable and much-loved child, whom I shall refer to hereafter as R.  R was born on 27th September 2006 and is therefore now aged eleven.  Sadly, she suffers from a number of profound disabilities and will need care and support for the rest of her life.

2. Until recently, R has been looked after by her mother, who I shall refer to hereafter as J, who has dedicated her life to caring for her.  R's father, S, is separated from J and lives in another part of the country, but pays financial support for her and visits her when he can.

3. Over the years, difficulties have arisen in relations between the local authority and some of the professionals involved in R's life.  In the summer of 2017, a crisis arose when the local authority became concerned that R might be at risk of significant harm in J's care.  As a result, care proceedings were started and, for the last six months or so, R has been living in a specialist residential home, hereafter referred to as DHR.

4. Because of the perceived complexity of the case, the proceedings were transferred to me and listed for a full hearing over six days.  Earlier this week, I heard submissions and reserved judgment until today.  This is my judgment, setting out my findings on issues between the parties and my decision concerning R's future care.

5. In a report at the start of proceedings, R's treating paediatrician, Dr. Cox, who has been responsible for her care and treatment since 2011, listed the constellation of her symptoms as follows:

i) Rett-like syndrome;

ii) severe dystonia;

iii) autonomic dysfunction;

iv) central visual impairment;

v) no communication except by eye movement, head movement and rare smiles;

vi) upper limb fixed flexion;

vii) lower limb fixed extension;

viii) gastrostomy;

ix) severe scoliosis;

x) previous life-threatening events;

xi) aspiration with right middle lobe pneumonia in August 2017.

6. In the early years of her life, R's treatment was managed at Great Ormond Street Hospital ("GOSH"), but for the last six years or so it has been managed at the local hospital in the area where she is currently living, with occasional referrals to GOSH.

7. It is clear from everything that I have read that Dr. Cox and his team have provided dedicated medical care and treatment for R.  I see no reason to criticise or challenge his diagnoses or opinions.  In the course of these proceedings, however, an expert opinion was obtained from Dr. Richard Hain, a consultant in paediatric palliative care at the Children's Hospital for Wales in Cardiff. I have found his report extremely helpful, as I know have the mother and other parties.

8. It is appropriate at this stage to cite some further information concerning R's condition and care from Dr. Hain's report, in some detail.  He advises that Rett's syndrome cannot be cured and its progression cannot be halted or reversed by any of the interventions currently available.  It is usually only slowly progressive and not all children with the condition will need palliative care. In practice, a large proportion of girls with the syndrome develop distressing symptoms and the life span of many of them will be shortened by complications of the condition. Dr. Hain concludes that R falls into this category, and that it therefore seems reasonable to consider that she has a life-limiting condition.

9. Dr. Hain advises that the normal history of Rett's, even if the diagnosis is certain, does not help in prognostication because its course is so variable.  The commonest mode of death in progressive neurological conditions, including Rett's, is respiratory failure due to chest infection.  Other important modes of death are prolonged seizures that cannot be terminated using anti-convulsive medications, and severe bowel dysfunction that threatens the child's ability to extract nutrition from food.

10. Dr. Hain advises that, although it is not possible to know for certain how long an individual patient is likely to survive, increasing frequency of life-threatening events is an important indication that death is approaching more quickly.  In contrast, the absence of such events of increasing frequency represents good indirect evidence about prognosis. Dr. Hain advises that, as the material he has reviewed demonstrates that R has to date only had one life-threatening episode requiring admission to an intensive care unit, and that was seemingly related to the side effects of medication rather than a direct complication of her underlying condition, the prognosis about her short term is, therefore, relatively favourable. He therefore concludes that he would not be surprised if R were to die before reaching adulthood but, on the basis of the evidence that he has reviewed, he would be surprised if she were to die within the next year.  He expects her to live for some years, or at least a large number of months.

11. So far as pain is concerned, Dr. Hain notes that R has access to pain relief at home. Although not currently in pain, she is vulnerable to developing pain from a number of sources, including her dystonia and her dislocated hip.  He also notes that scoliosis causes pain by creating an imbalance in the very powerful muscles of the back. He concludes that, although she does not have much in the way of pain at present, there are potential sources for worsening pain.  Provided R has access to good generic palliative care locally and specialist paediatric palliative medical care is also available, Dr. Hain expects that the potential types of pain to which R will be vulnerable will be well-contained.  Complete resolution of her pain is less likely, although not impossible.

12. Dr. Hain also advises about the likelihood of dyspnoea in her case.  He points out that, while for most of us the sensation of breathing is normally effortless and rarely noticeable, in some patients there is an abnormal sensation that breathing has become uncomfortable.  It is known as dyspnoea.  It can have a number of causes and, in R's case, the most likely cause is chest infection, to which she is made more vulnerable by her scoliosis and the reduction in her capacity for controlled movement. The mechanism is complex and can include diverse factors such as pain and the presence of fluid and other material that abnormally stretches infected lung airways. From the material that Dr. Hain has reviewed, he concludes there is nothing to suggest that R currently experiences dyspnoea.  She has, however, had one episode of aspiration (that is to say, chest infection caused by inhaled feed) in the last twelve months, and he thinks it likely that the frequency and severity of chest infections will worsen for the rest of her life. He again advises that, provided R has access to good generic palliative care locally, plus specialist paediatric palliative medical attention, he would expect the dyspnoea to be well controlled although not eliminated.

13. Dr. Hain also draws attention to the likelihood of fear and anxiety being features of R's life in future.  Such emotions are fundamental and do not require well-developed cognitive function of the sort which R lacks, and therefore can be experienced powerfully by children with neurodegenerative conditions.  He points out that pain and dyspnoea can both be sources of anxiety and, in turn, anxiety can exacerbate the experience of pain and dyspnoea. He says there is nothing to suggest that R is experiencing anxiety at present, but he warns that she is certainly vulnerable to it, and that this is likely to become worse over the next few years.  Once again, however, he advises that, provided R has access to good generic palliative care locally, plus specialist paediatric palliative medical attention, he would expect that her anxiety will be well controlled, although in all probability not eliminated entirely.

14. In these circumstances, Dr. Hain recommended, in line with the views of the treating clinical team, that there should be an appropriate end of life plan.  The plan should include provision for escalation of treatment, provided the harm resulting from any interventions was properly justified by the benefits.

15. Dr. Hain was specifically asked to consider whether it is in R's best interests to continue to be given antibiotics.  His advice was that, at this point in her illness, it would be difficult to justify withholding antibiotics, either given orally or intravenously, because there is every reason to expect that, if she had an infection, antibiotics would return her to her usual level of health.

16. Dr. Hain was also asked to consider whether it was in R's best interests to receive enteral feeds and, if so, whether the feed given by this means should be a blended diet or a prescribed formula.  His advice was that at this stage there is no justification for withholding enteral feeds, since adequate nutrition was manifestly essential.  In most circumstances, there is little evidence to support giving prescribed feed as opposed to blended feed, but Dr. Hain advised that, when there are concerns – as there have been at some points – about her nutritional status and weight loss, it is reasonable to insist that R received prescribed feeds, rather than the blended diet.

17. Dr. Hain was also asked to consider whether it was in R's best interests to receive resuscitation and invasive ventilation.  He acknowledged that invasive ventilation does not reverse the underlying condition which causes breathing difficulties, and that there comes a point with a child with life-limiting conditions when the benefits of invasive ventilation are not great enough to justify the harm it causes. He considered, however, that, at this point in R's life, there is evidence that, even when suffering from severe chest infection, R can be returned to something approximating to her normal level of health, with the help of invasive ventilation.  In Dr. Hain's view, it would not be reasonable to withhold invasive ventilation unless it was clear at the time that R had become so unwell that she was unlikely to benefit from it.

18. All parties accept that Dr. Hain's diagnosis and analysis accord with R's current condition and constitute an accurate and reliable assessment of what is in her best interests.


19. I now consider the background to the events which led up to the local authority's decision to start care proceedings in this case. 

20. R's mother was herself in care from a very early age and, as is clear from the reports filed in these proceedings, suffered a number of extremely traumatic experiences in her childhood, and, in particular, the experience of the loss of a number of important relationships at various points. She has three other children, all with different fathers.  So R has two older sisters, one aged 20, who was accommodated by the local authority under s.20 of the Children Act 1989 in 2013 and is now categorised as a care leaver, and the other, aged rising 17, who is currently accommodated by the local authority under section 20. J's youngest child is a boy, hereafter referred to as M, aged 5½, who currently lives with J but who is the subject of ongoing proceedings for child arrangements orders brought by his father.

21. J and her three daughters, including R, moved to this part of the country in 2009.  The local authority's statement in these proceedings asserts that, prior to the move, the family had been known to social services in the local area where they lived before, and concerns had been raised about the mother's emotional relationship with R and missed medical appointments for the child.  Similar concerns about missed appointments arose after the family moved. Other difficulties came to the local authority's attention, in particular with regard to the two older girls, including allegations of aggressive behaviour by the oldest child.  At one point, in order to protect R from the effects of that behaviour, her mother agreed that R should be accommodated with the local authority under s.20 for a period of over a year, between October 2013 and December 2014.

22. Towards the end of December 2014, however, the mother removed R from foster care, without the local authority's agreement.  This prompted the local authority to start the first set of care proceedings in respect of R in February 2015.  However, those proceedings came to an end in June 2015 with no order being made.

23. Concerns continued to be raised with the local authority, however, including by Dr. Cox, the treating paediatrician, who in July and August 2016 referred R to the local authority social services department because of concerns about her weight loss, missed appointments and allegations that the mother was refusing to follow medical advice.

24. On 8th May 2017, R was admitted to hospital after Dr. Cox became concerned at a routine clinic about some signs of increased dystonia.  Following her admission, on the night of 11th May 2017, R suffered an apparent life-threatening event.  Dr. Cox's opinion was that this may have been an electrical seizure; the clinical records refer to seizures, breathing difficulties and falling oxygen saturations, despite the administration of oxygen. R was treated with two doses of buccal midazolam, a sedative, and phenytoin, an anti-seizure medication, and required intubation and ventilation.  As the cause of the acute deterioration may have been reversible, R was transferred to a hospital in Cardiff, and specifically to a paediatric intensive care unit there, for specialist treatment, and was then successfully extubated.  Medication was stopped, save for dystonia, and she was discharged home to the care of her mother on 31st May.

25. The clinical notes show that the mother was in full agreement with a plan for all medical interventions at that stage, although there is a reference to her saying that she and her daughters: "don't want R to suffer, and if she has the opportunity to drift away, then this is what they want".

26. The mother, together with father, who had travelled down overnight when R's condition suddenly deteriorated, agreed that she should be transferred to Cardiff.  In her statement in these proceedings, which was filed shortly before the hearing before me, the mother described how, after the acute life-threatening event, "everything after that becomes a blur for months".  She also described how, when the decision to transfer R to Cardiff was made:

"there was no time to plan.  We just had to go.  It was made very clear to me that R's life was in danger and that I needed to prepare myself for her death. I think I convinced myself that she was going to die and, when we were told she was not going to die, I was overwhelmed by relief.  As the enormity of what happened sank in, I also became petrified that she might have to go through again what she had just managed to survive.  I thought over everything she had been through in her life, the surgery, dystonia and the contractions and everything that she had to come, more of the same, and the proposal of really serious spinal surgery, and I couldn't bear it for her.  R has made a full recovery from this, but I don't think I have.  I don't think anyone who is not R's mother could ever really understand.  It has been truly traumatic and affected my thinking and mood and relationships with everyone around R for a very long time".

27. On 4th June 2017, R was readmitted to hospital with increased dystonia.  On 5th June, the mother completed a "wishes document" with Dr. Cox, the effect of which was that, in the event of another life-threatening event, R should have no active resuscitation other than suction and physiotherapy.  Antibiotics would only be given after discussion with the mother.

28. On 6th June, R moved to a local hospice under an arrangement which had been planned some time earlier, although seemingly before Dr. Cox had completed his assessment and symptom-controlled treatment.  Over the next few days, the mother indicated that she did not feel she could meet R's needs without additional support, and it was agreed that R should go into a specialist residential unit, DHR, which, according to the local authority, was the only local provider that could meet R's needs at short notice. Although I have described it as "local", it is in fact nearly two hours' drive away from the mother's home, in a different part of the county.  R was duly admitted to DHR on 9th June. 

29. On 14th June, a child in need review meeting took place chaired by the social worker.  The minutes recorded, inter alia, that R's ongoing health and well-being was such that she had recovered from an acute episode and was well enough to be cared for at home.  They also recorded that the mother's mental and emotional well-being had fluctuated over the past few weeks and thus her ability to make appropriate decisions about R's care was questioned by professionals.  This included her recently-formulated wishes document prepared with Dr. Cox. It was the view of the meeting that some aspects of the document may actually cause suffering and may not be ethical and/or legal.  The mother's anxiety levels appeared very high, and it was noted that she had lost her confidence to meet R's care needs.  The mother was also concerned about the impact of recent events on her younger child, M. In the meeting, the mother became very tearful when discussing the wishes document.  She was adamant that she would not change this and spoke of how hard it had been to complete it, and she would not repeat that process.  It was her view that prolonging R's life with interventions would cause her further suffering.

30. There is a dispute at this point about whether the mother went away from the area for a week, as alleged by the local authority, and also about how frequently she visited R over the next week or so.

31. On 23rd June, an incident occurred which featured prominently in the local authority's threshold document in these proceedings.  It is agreed that that day, the mother arrived at DHR and, shortly after her arrival, gave R a dose of midazolam, which she carried in her bag for emergencies. At the outset of the proceedings, it was asserted by the local authority that the mother had done this in breach of an agreement as to the management of dystonia and without checking whether midazolam had been previously administered that day.  In the course of the hearing, some inconsistencies were identified by Ms. Katie Gollop QC, on behalf of the mother, within the DHR records and between the DHR records themselves and the statement filed in these proceedings by a nurse at DHR on behalf of the local authority. All that can fairly be said at the conclusion of the evidence is that, on that day, midazolam was administered by the mother against the request of the nurse.  In so far as there was any suggestion or implication that the mother was on that occasion unnecessarily and dangerously administering the drug to her daughter in a way that endangered R's safety and health, I record that the evidence provides no support for such a suggestion.

32. Later that day, R was admitted to hospital again.  In a medical report dated a few days later, Dr. Cox described her as being in a clinical condition similar to that of 8th May 2017, with intermittent periods of severe dystonia lasting 20 minutes to two hours, and needing one to two doses a day of midazolam, plus other medication.

33. On 6th July, R was transferred to GOSH.  The referral letter from Dr. Cox sets out the position at that stage and also identifies particular issues on which he and his colleagues, and the mother, sought assistance:

"Overall, I believe that R's quality of life is less than I witnessed previously some months ago….but I have no objective way of measuring this and can only go on what I myself have witnessed and the subject report of others….at Mother's request, I have had several very prolonged frank discussions regarding the appropriateness of continuing life-sustaining treatment for R, the last and most complex of these on Tuesday.  These discussions have been difficult but very important for her.  J feels that R's quality of life now is so poor that it may now be time to withdraw life-sustaining treatment, which of course for R is currently only artificial feed and hydration via the gastronomy, as she is unable to do this herself.  I have explained that such a decision will be very difficult for us to make locally, as I am aware that J's opinion is not shared by all health, education and social care professionals that had been involved with R, but none of these have to live with R day to day and witness her situation.

I have said that such a decision could only be made with the input from professionals experienced in these discussions, well-versed in ethical debate and willing to provide Mother with a clear answer set in a legal framework.  We do not have this facility locally or, I suspect, even within our region.  For this reason, I would be very grateful if you could instigate this within Great Ormond Street, and apologise that I have not been able to communicate this with you prior to transfer".

34. In her statement in these proceedings, the mother broadly accepts this account of her discussions with Dr. Cox.  She had talked to him about what she described as her ethical dilemma, and she understood this to be one of the purposes of the referral to GOSH.  It seems clear, however, that the staff at GOSH did not appreciate that this was a component of the referral, or, if they did, they concluded that it was not a matter on which they could advise because of the circumstances in which R came to be at their hospital, that is to say, as a referral patient.

35. I have not heard from GOSH staff in these proceedings, so shall make no further comment.  As I observed during this hearing, this admission came shortly after the decision of the Supreme Court in the Charlie Gard case, in which GOSH had, of course, played a crucial role.

36. In her statement, the mother described the experience of this referral as being nothing like what she had expected.  She concluded that there had been a breakdown in communication between Dr. Cox and the GOSH staff, and she felt to some extent that she had been the subject of criticism when she sought to raise the ethical issue. Reports from GOSH staff record her as raising these issues.  Dr. Ganeson, a consultant in paediatric neurology at GOSH, reported in a meeting dated 11th July, at which she and her colleagues had updated the mother concerning R's medical condition and then proceeded to discuss the mother's perspective of R's health. She reported the mother as having stated that she thought R was in the worst health state she had ever been in in terms of her comfort, and dated this back to the intensive care admission in May.  The mother stated that she felt that the measures that were being taken to care for R were invasive and ineffective, and that R was suffering unacceptably.  She specifically stated that she felt feeding R was prolonging her life and that consideration should be given to withdrawing feeding from R.  Dr. Ganeson advised that this would be a matter to be resolved by a court. They then discussed whether R's situation would fall under the remit of official guidance for withdrawing or withholding life-sustaining treatment, and she expressed the view that such guidance was not relevant, as it pertained to people who were felt to be nearing the end of their life, and she did not feel that this applied to R.  She added that exploring such issues would not be within the remit of a specialist neurology team at GOSH, and this was something that she would expect Dr. Cox and the local social services team to lead on. She said that the referral had not been accepted on the basis of resolving this issue and therefore planned to remit the case back to Dr. Cox.

37. Another GOSH doctor reported back to Dr. Cox, recommending a referral to a local ethics committee.  On 13th July, R was therefore transferred back to the local hospital.  Dr. Cox has reported that, when he enquired why she had been returned to hospital as opposed to her home, GOSH staff had told him that this was general policy, but in addition they expressed concerns about R's safety, should she be returned home. Dr. Cox was told, in terms, that GOSH saw the admission as a social care admission to a place of safety while long-term arrangements for her care were put in place. Specific reference was made to the mother's refusal to sanction the use of antibiotics, which GOSH staff considered inappropriate. 

38. Meanwhile, the mother had been interviewed by the BBC on two occasions. In the course of those interviews, she had indicated that she wanted R's feeding to be withdrawn so that she could be allowed to die.  The context of these interviews was, as stated above, the aftermath of the Charlie Gard case, with the underlying point presumably being that, in contrast to Charlie Gard's parents, some parents of children with severe disability took the view that it would be better for their children to die.

39. In her statement in these proceedings (filed, as I have said, shortly before the hearing before me), the mother described how, in July 2017, she had felt at the end of her strength and very isolated.  She said that she had gone on social media partly to find out if there was anyone else who actually understood, or whether she was on her own.  Some of the responses she received she found helpful.  She explained that she had done the BBC interviews for the same reason.

40. On 26th July 2017, when R was still in hospital, the mother had a conversation with another consultant paediatrician, Dr. Cordingley.  In her statement for these proceedings, Dr. Cordingley recorded that the mother had said that, if R had a seizure, then she would like to have 5 milligrams of midazolam so she could give it to her at home.  Dr. Cordingley reported that GOSH staff did not think that R was having seizures and that she, Dr. Cordingley, would therefore not be dispensing it, as it was not part of the treatment plan. The mother told Dr. Cordingley that, if R had a seizure at home or became unwell, then she did not want R to be treated and did not want her to have oxygen, and did not want R to come in and out of hospital.  When Dr. Cordingley observed that GOSH had deemed that R was not at end of life, the mother said that this was not everyone's opinion. Dr. Cordingley told the mother that she needed to make sure that R was safe.  If R had a seizure or an unusual episode at home, or became more unwell, then the mother would need to call the paramedics or contact her GP.  The mother responded that the paramedics were well aware of her wish for no oxygen or treatment.  Dr. Cordingley warned that she was not sure how the mother would stand legally if she did not call paramedics or allow treatment, and that she should discuss this with her lawyers.

41. In her recent statement in these proceedings, the mother accepts broadly the accuracy of Dr. Cordingley's statement, and acknowledges that she had been warning her that, if she did not consent to R having treatment or failed to call an ambulance, she might be committing a criminal offence.  The mother observes now that, at that point, she did not, in her words: "haul that aboard", adding "I was totally focused on what I believed was best for R and saving her from suffering".  The mother now says that, in fact, whatever she may have said at the time, there has never been any occasion when she has not called for help for R when she needed it, and, she adds, she always would.

42. R was discharged home on 27th July.  On 10th August, the mother, according to the social services, refused to speak to the social worker and declined a further appointment with the social worker the following week.  On 17th August, R was readmitted to the hospital following further episodes of distress and dystonia.  On the next day, an initial child protection case conference was convened.  On 21st August, R became unwell, vomited and had breathing difficulties, for which she was treated with oxygen. Chest x-rays confirmed that she had had an aspiration with the appearance of a right middle lobe pneumonia, with other evidence of infection in the form of raised white cell counts and CRP.  Dr. Cox discussed his treatment proposals with the mother, which included the use of antibiotics.  The mother indicated that she did not want R to be given antibiotics.  In her statement filed, as I say, shortly before this hearing, the mother says that by this point she was, in her own words, "totally stuck" and unable to take on any more information. She felt the outlook for R was hopeless.  She asserts that she could not process what Dr. Cox was saying about antibiotics. R seemed to be getting better and the mother could not grasp the purpose of giving antibiotics to a child who was getting better.

43. It was this apparent refusal by the mother to approve giving antibiotics to R that finally led the local authority to issue proceedings under s.31 of the Children Act 1989.  A telephone hearing took place before Her Honour Judge Robertshaw that evening, 22nd August.  The local authority, the mother and the guardian were represented.  The mother was not present but in contact separately with her solicitor by a separate line.  The father was neither present nor represented at this telephone hearing. Judge Robertshaw made an interim care order on the basis of an interim care plan for R to be discharged from hospital back to DHR.  As is clear from the transcript of the hearing, the parties agreed that the interim care order would be for a limited period, pending a further hearing at which all parties could be present and represented.

44. After that hearing, an issue arose between the mother and the clinicians at the hospital as to whether R should be fed by blended diet, as the mother proposed, or by a formula diet, as the hospital proposed.  A further emergency hearing was therefore arranged for the next day, 23rd August, at which Judge Robertshaw made a declaration that R could be fed formula feeds, notwithstanding the mother's objections. In her statement for this hearing, the mother accepts that with hindsight, she should have agreed with Dr. Cox, but adds that the father also thought that a blended diet would be appropriate. 

45. For reasons I do not understand, no sealed order exists from either hearing, 22nd or 23rd August, although drafts were submitted by counsel.

46. At an early stage in the proceedings, it was agreed that the case should be transferred to me.  There was plainly a suspicion at that stage that the mother, believing that it was not in R's interests to stay alive, might obstruct her treatment.  Further direction hearings took place before Judge Robertshaw on 11th September and 24th October.  On the latter occasion, the matter was listed before me for a case management hearing and a contested interim care hearing on 29th January.  The hearing was described as "a contested interim care final hearing, or, if it is possible, a final hearing".

47. In December 2017, two incidents occurred at DHR on which the local authority has relied at this hearing.  First, the mother is said on one occasion to have applied some chocolate to R's mouth when she had an unsafe swallow.  Secondly, the mother is said to have lifted R manually, in breach of DHR requirements for hoists and two-to-one lifting.

48. The matter came before me for the first time on 7th December 2017, when I gave case management directions, including the instruction of Dr. Hain, and listed the matter on 21st December to enable a review of whether the interim care order should continue or whether R should return home immediately.  On the next occasion, 21st December, I gave further case management directions, including permission to the parties to instruct Dr. Freda Gardner, consultant psychologist, and further directions.  I refused to discharge the interim care order, but instead directed that the hearing at the end of January should be a final hearing.  Those directions committed the parties to a very tight timetable.  I am pleased to record that, thanks to the effort of all the parties and their legal representatives, in particular Mr. Sanjay Patel for the local authority, the case management directions have been complied with, with some minor slippage that has not ultimately caused any inconvenience or prejudice to any party.  I am grateful to everyone for all their efforts to ensure that the hearing has gone ahead as planned.

49. In the event, the hearing of evidence only took four days, preceded by a reading day and followed by a day of submissions.  The parties are represented as follows:  the local authority by Mr. Aidan Vine QC, and Mr. James Rees: the mother by Ms. Katie Gollop QC and Ms. Sarah Pope; the father by Ms. Victoria Hoyle, and the child's guardian by Mr. James Hayward.  The bundle, immaculately prepared by Mr. Patel, comprised about 16 lever arch files.  Oral evidence was given at the hearing by Dr. Cox, Dr. Gardner, Ms. Luscombe, the current social worker.  Nurse Hallett from DHR; the mother, the mother's sister, the father and the guardian.

50. The first question for the court to determine is whether the local authority has proved that, on the facts of the case at the relevant date, which in this case was the date on which the care proceedings were started, R was suffering or likely to suffer significant harm as a result of the care being given by the mother, or likely to be given by the mother, not being reasonable for a parent to give, so that the threshold conditions for making a care order or any order under s.31 of the Children Act are satisfied. Secondly, if the court finds that the threshold is crossed, the court must then decide what order to make, having regard in particular to the provisions of s.1 of the Children Act and in particular, the principle that the child's welfare is the paramount consideration, and having regard to relevant matters in the welfare check list in s.1(3).  These statutory provisions have been considered in a number of reported cases, and the principles derived from those cases are well-known.  No party has sought to address me on the law, and having set out the principles myself in a number of cases, including Re JS and Re IB and EB, I have them firmly in mind at all times.

51. It will be necessary to refer briefly to some of the legal principles later in the judgment at the appropriate point.

52. The findings sought by the local authority in support of its case that the s.1 threshold is crossed have been set out in a schedule to which the mother, through her legal representatives, has responded.  As is often the case, the threshold document was lengthy and by the end of the hearing, the issues and findings required have narrowed considerably.

53. The schedule begins with a summary of R's condition and some of the background, as set out above, which is not controversial.  The local authority then makes a number of assertions and allegations, and seeks a number of findings under the following headings:

i) R is a very vulnerable child who suffered a life-threatening event on 11th May 2017.

ii) The mother has a long history of social care involvement arising out of her care of R, and has not always been able to provide consistently good enough care for her daughter.

iii) The mother's decision-making in respect of R's care needs was chaotic following the life-threatening event of 11th May 2017.

iv) Since the life-threatening medical event of 11th May 2017, the mother's decision-making in respect of R's medical treatment has not been in R's best interests and was coloured by her persistent belief that R's quality of life no longer justified the medical interventions provided to her.

v) Since the event of 11th May 2017, the mother has not always complied with medical and/or care advice, or agreements as to how R's needs should be met.

54. The first and second "findings" set out above were largely historical matters and not substantially in dispute.  In so far as the local authority relies on historical allegations referred to above, concerning missed appointments and failure to follow professional advice, the mother concedes that these occurred on occasions, but draws attention to the context, namely, that she felt lacking in support at times and overwhelmed. 

55. The heart of this case and the matters which have led the local authority to take proceedings, concern the mother's reaction to the life-threatening event of 11th May 2017; that, thereafter, her decision-making was chaotic, not always in R's best interests, and coloured by her persistent belief that R's quality of life no longer justified the medical interventions proposed; and, further, that thereafter she has not always complied with advice or agreements concerning how R's needs should be met.

56. In response, the mother's case in outline is that she accepts that her decision-making has at times been chaotic.  She broadly accepts that it has not always been in R's best interests, and at times coloured by her belief that R's quality of life did not justify the proposed interventions, and in part she accepts that she has not always complied with medical care, advice or agreements.

57. In the light of these important concessions, I consider it unnecessary to go through the whole schedule of specific incidents in full detail.  I have set out a number of the incidents raised in the schedule in my full summary of the background above.  I shall deal with a few of the salient features now, including the facts that remained in dispute at the conclusion of the hearing.

58. (a) The local authority relies on the fact that the mother requested that R be placed in residential care in DHR on 7th June 2017 because she lacked additional support at home, then went away for a week and failed to visit R for a number of days thereafter.  The mother accepts that the facts alleged happened (although she does not accept that she went away for a week), but asks the court to bear in mind that she was under immense pressure at this time and did not have adequate support.  Recognising that she needed a break and not being in a position to care for her daughter at this time, she wanted the best option for R.

59. (b) In its opening document, the local authority asserted that, on 23rd June, the mother had administered midazolam to R at DHR without trying alternative lesser measures to address her dystonic episodes, and in breach of the dystonia management plan, or without checking whether the drug had previously been administered.  The mother admitted giving R the drug, but denied that this had given rise to any harm or risk of harm, and challenged a number of the alleged surrounding circumstances on which the local authority relied.  In its closing document, the local authority, through Mr. Vine and Mr. Rees, accepted that the evidence, as it emerged during the course of the hearing before me, merely indicated that the mother had administered the medication contrary to the request of the nurse.

60. (c) The local authority relies on the mother's attempt to remove R from DHR on 23rd June 2017, at a point when she had inadequate support and when a planned admission to hospital had been arranged.  The mother asserts that she was so concerned about R at this time that she wanted her urgently assessed by GOSH, rather than the local hospital, although, in the event, R's condition deteriorated and she was admitted to the local hospital overnight.  With hindsight, the mother accepts that she should have allowed her to move from DHR to the local hospital as Dr. Cox advised.

61. (d) On 27th June 2017, the mother informed a child in need meeting that she would not amend the written wishes document for R's end of life treatment which, as drafted, provided that, in the event of a further life-threatening event, there would be no active resuscitation other than suction and physiotherapy, no supplemental oxygen, and no antibiotic therapy, save after discussion with her.  The mother's response states that at this stage she was seeking a referral from a specialist medical adviser because she wanted answers concerning her daughter's prognosis and the ethical issues arising from her condition.

62. (e) On 10th July 2017, the mother informed the palliative care team at GOSH that she and all the family agreed that R was suffering and should be allowed to die.  The mother accepts that this is factually correct, but asks the court to view this in the context of her condition at the time, being mentally, physically and emotionally distressed and overwhelmed.

63. (f) On 11th July, the mother informed the neurological care team at GOSH that R was suffering unacceptably and that feeding her was prolonging her life, and consideration should be given to withdrawing it.  The mother accepts that this is factually correct, but again draws attention to her request for ethical guidance, which had been passed on via Dr. Cox to GOSH.

64. (g) As a result of the conversations on 10th and 11th July, set out above, the GOSH clinicians decided to discharge R back to the care of the local hospital, rather than home to her mother, because they did not consider her home environment to be safe, even with nursing support.  The mother accepts that the GOSH team reached this conclusion, but relies on the context as summarised above.

65. (h) Over a period of weeks in July 2017, the mother used social media, by tweets and other methods, to make assertions about the accusations made that she was a danger to the child, and, in the course of media interviews, stated that she wanted R to be allowed to die and for the nutrition tube and medication to be withdrawn.  The mother accepts that she acted in the way alleged, but again relies on the context of her feelings at the time, coupled with the heightened public interest in the general issues arising in the case.

66. (i) The local authority relies further on the mother's decision to discharge R from the local hospital on 27th July before night-time support had been arranged.  The mother asserts that she was in the process of arranging cover and wanted her daughter out of hospital if possible.

67. (j) On 22nd August 2017, the mother on two occasions refused to agree to R receiving antibiotic treatment contrary to the advice given by Dr. Cox and his team.  The mother accepts that she took this position at the time.

68. (k) On 23rd August, after the start of these proceedings, the mother refused to agree to R receiving prescribed formula feed as opposed to blended diet, contrary to Dr. Cox's advice.  The mother accepts that she took this position, but draws attention to the fact that the issue of R's diet was complicated by a number of problems.  The mother draws attention to the fact that the father also supported the continuation of the blended diet, and that Dr. Cox did not suggest in evidence that the child was at risk of being harmed by a blended diet.  As I understand the local authority's case, however, the concern is not so much the direct risk of harm from the diet, but rather that this was another example of the mother's failure to follow advice, which in turn was driven in part by her views at that time concerning R's quality of life.

69. (l) The local authority asserts that, on 3rd December 2017, the mother administered chocolate to R's lips and tongue, notwithstanding the fact that she has an unsafe swallow, is classified as nil by mouth and still at risk of further infection.  The mother admits that she smeared a very small amount of chocolate on R's mouth.  She denies that this amounted to the "administration" of chocolate, and asserts that she acted in this way with the aim of giving her daughter some pleasure.  She does not believe that R suffered in any way as a result.  Once again, it seems to me that the local authority's case is not so much that R suffered harm or was likely to suffer harm, but rather that the mother continued to fail to comply with agreed plans for her daughter's care.

70. (m) In its opening threshold document, the local authority further asserts that, on 7th December 2017, the mother lifted R manually in the classroom at DHR, in breach of the residential homes requirement for hoist lifting and/or two-to-one ratio for manual lifting.  The mother accepted that she had acted in this way, but asserts that she had done so frequently over the years and acted instinctively on this occasion.  In its closing document, the local authority clarified its position and confirmed that it did not seek a finding that she had falsely asserted that she was allowed to lift R in this way.

71. In the light of the evidence and subsequent closing submissions, I conclude that the threshold conditions are satisfied in this case on the basis that, at the relevant date, R was likely to suffer significant harm by reason of the care given to her or likely to be given to her by her mother, not being what it would be reasonable to expect a parent to give, for the following reasons:

i) R is an extremely vulnerable eleven-year-old girl with very complex medical, care and social educational needs, who suffered a life-threatening event on 11th May 2017, an aspiration on 21st August 2017 and is entirely dependent on others for her care.

ii) After the life-threatening event in May 2017, the mother made a number of decisions concerning R's care which were chaotic and not in R's best interests, and which gave rise to a risk of significant harm.

iii) On 22nd August 2017, the mother refused to give her consent to antibiotics being given to R in circumstances where, on medical advice, she plainly needed them, and as a result, R was at risk of significant harm.

iv) In the weeks leading to the start of these proceedings, the mother had formed the view that R's quality of life was so poor that her treatment should be restricted in the event of a further life-threatening event.  That view was influencing the decision that the mother was making at that stage so that, in the event of a further life-threatening event, it was likely that the mother would refuse to agree to treatment and that as a result, there was a likelihood that R would suffer significant harm.  In her evidence and submissions on her behalf, the mother has stressed that her views have now changed on this issue since the start of the proceedings.

v) Over a prolonged period, the mother has not always followed advice concerning R's treatment and care and, as a result, and given R's very vulnerable condition, there was a likelihood that the R would suffer significant harm.

72. I therefore conclude that the threshold condition under s.31 was satisfied, and I turn to the question of what orders should be made in the light of my findings.


73. I remind myself that in making this decision I must have regard to s.1 of the Children Act and in particular, the principle that the court must act with the child's welfare as its paramount consideration, and have regard to the principle that the court should make the least interventionist order consistent with the child's welfare.

74. In making this decision, I have had the benefit of expert advice from Dr. Freda Gardner, consultant psychologist, who prepared a report at very short notice and attended to give oral evidence.  Her instructions included a request to carry out a full psychological assessment of the mother, including a review of her medical history, identifying appropriate treatment and therapy as may be available for the mother; an assessment of the mother's style of attachment to R; consideration of whether the mother was sufficiently psychologically robust to care for R at home without support; and an assessment of her capacity to work openly and co-operatively with professionals in future.

75. Dr. Gardner's report includes an executive summary which sets out her conclusions in some detail.  She found that the mother has a protracted history of depression and anxiety and poor affect regulation, and that there was evidence that she currently experiences symptoms consistent with moderate reactive depression and moderate anxiety.  Psychometric assessment of the mother's personality revealed the presence of compulsive traits but no evidence of severe personality pathology. There was evidence that, as a result of numerous fractured attachments and loss, particularly in childhood, the mother has developed a profound attachment disorder.  The characteristics of the disorder were, Dr. Gardner advised, an experience of distress and a tendency to up-regulate emotional responses, including defensive strategies, when her attachment system becomes activated.  The mother currently has very little insight with regard to the attachment difficulties she has and the impact that this has had, and continues to have, on her psychological functioning, both as an individual and as a parent.

76. In Dr Gardner's opinion, the mother requires long-term psychodynamic psychotherapy or psychodynamic counselling, dependent on availability, over a period of two years.  Such intervention would help her recover the memories from her past and the currently repressed feelings associated with them.  Dr. Gardner advised that, if the mother is able to fully engage in the intervention and commit to the therapeutic process, it is likely that she will be able to develop insight with regard to attachment difficulties, her tendency to up-regulate her emotional responses when her attachment system is activated, and the impact that this has had on the emotional functioning of the children and other adults. As the therapeutic process proceeds, Dr. Gardner advised that it was likely that the mother would experience relief from the psychological and mental health difficulties that she has experienced intermittently throughout her life.

77. It was also Dr. Gardner's opinion that, given the attachment and other difficulties experienced by the mother, it was likely to be in R's interests, irrespective of future placement, for the mother to be provided with a further intervention to help her develop the capacity for a greater level of emotional attunement.  This would facilitate the development of more attuned care of all of her children and increase the mother's level of insight into her relationships with others, including professionals.

78. Dr. Gardner considered it would also be helpful for the mother and the children for professionals around the family to have some understanding of the psychological difficulties that the mother has experienced throughout her life, and the impact that those difficulties have on her psychological functioning, including her ability to communicate with others, including professionals, when her attachment system is activated.

79. Dr. Gardner further advised that, given the attachment and other difficulties that the mother has developed and the strength of the emotional bond with her daughter, it was likely that her attachment system would be activated and reactivated when separation and/or loss is anticipated and/or threatened.  In such circumstances, Dr. Gardner advised the normative strategies such as distress, sadness, increased dependence and/or withdrawal, will be overridden by heightened emotional/affective responses and a reduction in coherence in her emotional behaviour.  Dr. Gardner therefore advised that, at the most difficult times, such as when R experiences life-threatening complications and treatment becomes urgent, it was less likely that the mother would be able to work in full partnership with treating clinicians because of her own emotional responses and defensive functioning. Dr. Gardner advised that, although there was evidence that the mother had developed some adaptive coping strategies and resilience, her psychological strength was likely to add to the emotional charge of her behaviour.  In those circumstances, the mother's psychological functioning was likely to make it difficult for her to care for R at home, even with the support identified. Dr. Gardner therefore concluded that, although the mother has the capacity to work openly with professionals, her capacity to work consistently and co-operatively will continue to be affected by attachment difficulties until she has had the opportunity to engage in and derive benefit from the intervention which Dr. Gardner recommended.

80. In her oral evidence, Dr. Gardner was optimistic that the mother would engage with the attunement work she recommended and the psychotherapy also proposed.  She described the mother as highly motivated and having a degree of insight not always found.  It is unusual, said Dr. Gardner, for someone in the mother's position to develop this level of insight and understanding during the court proceedings. Dr. Gardner confirmed that the attunement work she proposed in her report would be a relatively short-term piece of work, lasting perhaps ten to twelve weeks, but that the psychotherapy would last much longer, perhaps 18 months to two years.  Dr. Gardner was able to recommend a colleague who will be able to undertake the attunement work in the near future.  The attunement work would assist the mother in being able to enjoy the positive experiences in caring for her child during contact. 

81. However, Dr. Gardner did not consider that the mother would be able to resume caring for R full-time before completing psychotherapy.  That therapy would be a challenging process for the mother, enabling her to come to terms with the details and causes of her attachment disorder and personality problems.  However, the benefit of attunement work was separate from, and not dependent on, psychotherapy.  The focus on the attunement work would be to help the mother address the difficulties she had picking up nuances in complex situations.

82. All parties, including the mother, accepted Dr. Gardner's analysis and recommendations as to the type and level of work which the mother has to do. All accept that the mother cannot resume care of R at this stage.  The principal issue between the parties is whether the court can conclude that there is no prospect of the mother resuming care of R in the short and medium term until she has completed psychotherapy.  The local authority, supported by the guardian, is of the opinion that the mother cannot do so.  The mother, on the other hand, contends that there is a reasonable prospect that she will be able to resume care after the attunement work. This issue leads on to the second principal issue between the parties, namely, what order the court should now make.  The local authority proposes that there should be a full care order now, whereas the mother argues that the court should make a further interim care order and list the matter for further review after the attunement work is completed.

83. The local authority social worker, Ms. Luscombe, carried out a parenting assessment which concluded that R could not return home to the mother at this stage.  In her assessment, Ms. Luscombe succeeded, as the guardian says, in providing a complex and detailed narrative of R's holistic needs and the mother's difficulties in parenting her safely, given her own traumatic childhood.

84. In her concluding paragraph, Ms. Luscombe in the parenting assessment states:

"The level of harm and likelihood of it occurring is too high, especially when taking into consideration the mother's history of non or limited engagement and working against recommended plans of action.  R is thriving in DHR, showing that she is enjoying her life, building positive relationships with staff.  R has a right to life and prohibition of torture.  The mother's ongoing belief that R has a limited quality of life and the opportunity to restrict her access to medical services and treatments, means that R is highly likely to continue to experience significant harm in her mother's care.  It is my belief that the mother does not have the capacity to change within a suitable timescale for R, and that R would be unsafe both physically and emotionally in her care".

That passage and others in the assessment do not, in my judgment, reflect the degree of change in the mother's position during the currency of these proceedings.  I also, with respect to Ms. Luscombe, do not think it appropriate to refer to "torture" in the way that she did in that paragraph.

85. The local authority care plan went through a number of iterations – not surprisingly, given the complexities of the case.  In its final version, produced following the conclusion of submissions, the aim of the plan was summarised as follows:

"To ensure R receives high quality care to meet her complex needs in a stable and specialist environment [and] to enable the mother to remain involved in R's life with regular contact and contributing to key decisions while she receives the support she needs through attunement work and psychodynamic psychotherapy/counselling, as per Dr. Gardner's recommendations….The local authority believes that it is unsafe for R to return to the care of her mother until this counselling/psychotherapy has been completed or been evidenced to have made significant changes to the mother's functioning…It is the view of the local authority that R's needs are currently best met in a specialist residential placement, namely DHR, with the security of the full care order to reduce the risk of R experiencing significant harm.  It is the view of the local authority that the mother has the potential to resume the care of R if she completes the identified attunement work and psychodynamic counselling/psychotherapy, at least to the point where all parties involved assess that R's fluctuating health needs and complex care will no longer trigger her attachment responses".

86. Concerning contact, the current position is that the father sees R approximately every six to eight weeks, with phone calls two or three times a week.  The mother currently visits R twice a week for two hours on a Wednesday and three to four hours on a Sunday.  M accompanies his mother once a fortnight, and the older sisters attend on occasions. Since the start of the proceedings, the mother's contact has been supervised principally by DHR staff.  This has not always worked successfully, since the process of supervising contact inevitably involves an element of monitoring and recording, whereas the mother and R also need a degree of support in order to protect R and assist contact in being as beneficial an experience as possible.

87. Going forward, the local authority does not propose any change in the father's contact, but plans a reduction in the mother's contact.  Initially, the local authority plan – somewhat surprisingly, in my view – was for contact to be cut right down to once a month.  The rationale for this, as I understand it, was that the local authority did not at that stage envisage the mother ever resuming care of R full time.  The evidence did not really support that level of a reduction in contact.  Dr. Gardner did not support it, and as I understand her evidence, the social worker, Ms. Luscombe, did not really support it.  Furthermore, the rationale was contrary to the local authority's position concerning long-term care as it evolved during the hearing, namely that the mother had the long-term potential to resume care of R if she successfully completed psychotherapy.

88. In its final version of the care plan, therefore, the local authority proposed that contact should be once a week for four hours in term time on a Sunday and up to three sessions per week in holidays.  When the stage is reached for the attunement work which includes R, as is apparently planned, an additional session of contact will be arranged for the purpose of that work.  Contact would be supervised by a member of the local authority's intervention services and supported by a member of DHR staff, to ensure that R's needs are met. R's siblings will be permitted to attend any of the mother's contacts.  In addition, three weekends a year would be arranged for R to stay at the hospice near to the family home.

89. As for the long term, the local authority care plan included plans for a referral to adult services when R is aged 14, on the grounds that early planning will be of particular importance, given R's multiple needs.  The plan provided for a range of other services to be provided to R.

90. In the course of evidence and submissions, an issue arose as to the funding of psychotherapy.  No such issue arose in respect of the funding of attunement work, which the local authority has accepted ever since Dr. Gardner's report was provided. The local authority asked for time to clarify its position about the funding of psychotherapy and in the final version of its care plan, the local authority proposal is set out as follows:

"The local authority proposes that the mother will access psychodynamic counselling/psychotherapy, as follows:

1. The local authority will support the mother making the necessary application for healthcare provision of the same through her NHS GP, but would expect her to make the necessary application urgently.

2. The local authority will refer the mother to adult mental health services, the local authority partnership trust, for assessment of her need for the same, again as a matter of urgency.

3. The local authority's children's services cannot normally fund therapeutic work for adults.

4. In the event that there is no offer to provide or to contribute to the cost of the mother's psychodynamic counselling/psychotherapy from healthcare and/or adult services, by the time she has completed the initial phase on her own and first review of her attunement work, direct work with R as well, estimated to be ten sessions for the first phase and six weeks thereafter for subsequent reviews, the local authority's children's services will meet the cost of psychodynamic counselling/psychotherapy on the following terms:

i) The mother is engaged with the attunement work up to that point;

ii) The identity of the psychodynamic counsellor/psychotherapist is agreed with the local authority;

iii) The cost of the psychodynamic counselling/psychotherapy is capped at a figure to be provided;

iv) The cost and/or contributions will continue to be sought from healthcare, but children's services will meet the balance;

v) The costs will be paid subject to review each six months and subject to the counsellor and therapist considering that:

a) The mother has engaged with the psychodynamic counselling/psychotherapeutic work over the period of review, and

b) Reunification/rehabilitation remains a realistic objective to be achieved within two years of commencement of the counselling therapy.

vi) The period for the psychodynamic counselling/psychotherapy will be two years for the commencement and children's services cannot make any commitment to further funding costs of the same beyond that period.

vii) The identity of the counsellor/therapist will be agreed at the child in care review meeting on 20th March, if not before.  The counsellor/therapist will have access to such local authority documents as are required.  [Documents are then identified]

viii) The independent reviewing officer will have such local authority documents as are required.  [A number of documents are then suggested]" 

91. The plan is broadly supported by the father and the guardian.  The father, who gave evidence before me and spoke of his commitment to R, and is plainly devoted to her notwithstanding the fact that he lives some distance away, supported R remaining at DHR for the indefinite future.  The guardian also supported the plan.  She was concerned that she could not be confident that the mother would meet R's needs in an adequate way.  She was, however, critical of the local authority's original plan about contact and her intervention was instrumental in persuading the local authority to increase the proposal.

92. The mother has had the benefit of expert representation from leading and junior counsel, but in many ways she has been her own advocate, in her oral evidence and in her written statement, to which I have already referred on a number of occasions above, and which the guardian rightly described in her report as a heartfelt recognition of how her own past, over the past few years caring for R, has become more complex and challenging.  She stressed that she no longer held the views she had espoused in the summer of 2017 that R's quality of life did not justify the current levels of medical intervention.  Her position now is that she will do anything she can to ensure that R achieves her potential. She said she had never wanted to kill or harm her child, had never consciously misrepresented how ill she was, and had only described her condition as she truly believed it to be.  She said that she fully realised and understood that R could not come home at this stage, but hoped that the court would not endorse R's placement in what she described as "institutional care once and for all".  The mother asked for a chance to show that her care for R can be consistent.

93. On her behalf, Miss Gollop and Miss Pope cited examples of how the mother had on occasions worked well with professionals.  They stressed the profound effect of Dr. Hain's report on the mother's thinking, giving her the information and understanding of the issues relevant to the ethical decisions in a plainly expressed report which had, in Miss Gollop's phrase, struck home with the mother in a way that verbal advice of other clinicians, given in often fraught circumstances, had not. As a result, her thinking now is different and she is not in the "same place" she was at the time of the local authority application.  Miss Gollop and Miss Pope stressed the real insight that the mother has developed during the currency of the proceedings, to a degree which Dr. Gardner has described as unusual from a mother in care proceedings.

94. The remaining issue between the parties is whether the court should make a final care order or an interim care order.  The relevant provisions in making that decision are s.1(2) of the Children Act which provides that:

"In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child"

and further in s.32(5) and (6), which provide:

"(5) A court in which an application under this part may extend the period that is for the time being allowed under subsection (1)(a)(ii) in the case of the application [in this case, 26 weeks] but may do so only if the court considers that the extension is necessary to enable the court to resolve the proceedings justly.

(6) When deciding whether to grant an extension under subsection (5), a court must in particular have regard to

(a)  the impact which any ensuing timetable revision would have on the welfare of the child to whom the application relates, and

(b)  the impact which any ensuing timetable revision would have on the duration and conduct of the proceedings;

and here, 'ensuring timetable revision' means any revision of the timetable under section 1(a) for the proceedings which the court considers may ensue from the extension".

95. On behalf of the local authority, Mr. Vine cites the decision of the House of Lords in Re S, Re W [2002] 1 FLR 815, to the effect that:

"The purposes of an interim care order are to enable the court to safeguard the child's welfare until such time as it is possible to decide whether or not to make a care order, and not a means by which the court should continue to exercise a supervisory role".

96. Whilst accepting this principle, Miss Gollop and Miss Pope also relied on the observation of Mrs. Justice Pauffley in Re NL (Appeal: Interim Care Order: Facts and Reasons) [2014] 1 FLR 1384, as approved by the President in the case of Re S [2014] EWCC B44 that:

"justice must not be sacrificed on the altar of speed".

97. In their submissions in closing, Mr. Vine and Mr. Rees submit that, on the evidence of Dr. Gardner, the mother will not be able to make a case for R to return to her care until such time as she has completed the attunement work and made a significant shift in her psychological functioning through psychotherapy or psychodynamic counselling.  They acknowledged that both have a potentially favourable outcome from the mother's perspective, but add that neither is a given.  They stress that the evidence demonstrates that the psychotherapy or psychodynamic counselling is a long-term piece of work which will take place over a period which Dr. Gardner identifies as 18 months to two years.  Furthermore, as Dr. Gardner also identifies, it will not be an easy piece of work for the mother. The local authority reminds me that Dr. Gardner was concerned that repeat illness in R would trigger the mother's attachment response if R was in her care during therapy.

98. Dealing with the mother's proposal that there should be a further interim care order rather than a final care order, Mr. Vine and Mr. Rees rightly point out that such a course would not be aimed at securing a piece of evidence or enabling an event to occur which would permit a different outcome.  There are, they submit, no issues as to threshold, orders or care plan which cannot be decided at this stage. They submit further that, were the court to adjourn the case now, there would, as a matter of logic, be no lesser case for successive adjournments throughout the period of the psychotherapy work and/or psychodynamic counselling which is proposed.  Such a course would, they submit, offend not only against the principle in s.1(2) and the specific statutory regime for care proceedings under s.32(5), but also against the principles pronounced by the House of Lords in the Re S, Re W decision cited above. They submit that, while a single short extension measured in a few weeks might in certain circumstances be permissible, (for example, whether or not there was still an uncertainty about whether psychotherapy would be provided and/or funded), the extension of the sort sought by the mother here is of a wholly different order and collides directly with the principles set out above.

99. In response, Miss Gollop and Miss Pope invite the court to take what they concede to be an exceptional and counter-intuitive course in the context of the family justice reforms, namely to delay a final decision in this case.  They argue that, in this case, a delay would not be detrimental but would in fact positively benefit R's welfare interests.  They submit there is no evidence that any extension of time would be damaging to R's welfare.  She will remain at DHR and no change is proposed. On the contrary, the significant benefit that would result would be that the mother would have the opportunity to engage in attunement and psychotherapeutic work not previously available, and thus demonstrate real evidence of her capacity to change.  They submit that, in four months' time, the court would have available evidence which is simply not available now, partly because of the history of the proceedings. They point out the disadvantages of a final order – namely the fact that the local authority would become the decision-maker, the fact that the mother's legal aid certificate would be discharged, risks to the mother's accommodation, and the disappearance of the guardian and the judge. They further express concerns about the involvement of the independent reviewing officer, who of course has a role in ensuring the proper administration of care orders following the conclusion of proceedings. In the light of comments made by the officer in this case, which they submit give rise to a concern about her true independence, it seems that the reviewing officer had expressed support for the local authority's original plan for the significant reduction in contact to four hours a month, about which I have already been critical.  Miss Gollop and Miss Pope submit that that gives rise to a cause for concern as to whether the reviewing officer would truly perform the function that she is expected to perform in these circumstances.

100. On the other hand, they submit that were the ICO to be extended, the court could continue to be the decision-maker during what they describe as the crucial period of the case.  It would enable the court to reach what they describe as the "right" decision for this exceptional child, rather than what they described as expedited determination conforming to the 26-week rule.  They point out that the continuation of the proceedings would enable the guardian to remain involved in the case and identify a number of ways in which the guardian's continued involvement would be of assistance. They point out that the court would then be able to assess the progress of the mother's attunement and psychotherapy work, and would have a far better sense of the prognosis of that work in four months' time.  They also suggest that Dr. Gardner would be able to review the mother's progress at that point.  In addition, the mother will of course have the advantage of the ongoing legal representation.

101. Miss Gollop and Miss Pope attach importance to their criticism of the local authority's earlier planning in this case, which they say shows what they describe as a manifest failure to appreciate the benefit that R derives from her relationship with her mother.  In other words, they attack the serious reduction in contact proposed at the outset of the proceedings, and suggest that this demonstrates that the local authority lacks a true understanding of the importance of the relationship.  They point to other evidence which suggests the local authority has been reluctant to acknowledge the important role the mother has played in R's life hitherto.

102. On behalf of the father, who has, despite their separation, retained a degree of sympathy for the mother's position, Miss Hoyle indicated that he would not be opposed to an interim care order, and that he could acknowledge the potential benefit to the mother whilst stressing the importance of R being able to access all the help that Dr. Cox has suggested.  The father is concerned that any order in these proceedings should continue to recognise that he should be involved wherever possible in decisions about R's future.

103. The guardian's position crystallised when the final version of the care plan became available last night.  She now supports the making of a full care order, unequivocally, in the light of the local authority's firm commitment to fund psychotherapy as set out above.  Earlier in the course of submissions, Mr. Hayward on behalf of the guardian had indicated that she would only support the proceedings coming to an end if this assurance about the funding of psychotherapy was forthcoming.

104. I am grateful to the local authority for the flexibility it has shown in adjusting its care plan.  I am now satisfied that the care plan which has been produced yesterday represents the best outcome for R in the circumstances.  I am satisfied and acknowledge that the local authority has taken an exceptional course with regard to the funding of psychotherapy or psychodynamic counselling.  I cannot recall a case in which the local authority has made such a commitment, and I salute this local authority's decision.  It seems to me to be the right decision, having regard to the exceptional needs of this extraordinary child.

105. I have given careful thought to the question of whether the proceedings should continue.  I accept that, in many respects, this is an exceptional case.  I note the local authority has only recently changed its position. I acknowledge that, if the proceedings come to an end, the mother will be at some disadvantage.  She will lose her non-means-tested legal aid, and in all probability will not be able to access the legal advice which she currently has.  The end of the proceedings will also, obviously, mean the end of the guardian's role.

106. Ultimately, however, I have concluded that this case falls squarely within the category of cases in which the court, applying the principles enunciated by the House of Lords in Re S, Re W, should make a final order.  It is not appropriate for the court to extend proceedings in order to exercise a supervisory role.  The purpose of interim care orders is to enable the court to safeguard a child's welfare while it gathers the necessary information to make a decision as to the child's long-term future.  In this case, the evidence clearly establishes that it would not be in R's best interests to return to live with the mother in the short or medium term.

107. It was Dr. Gardner's clear opinion, which I accept, that the mother needs to undergo successfully both the attunement work and the psychotherapy she has recommended, before consideration can be given to returning R to her care.  It is possible that, after the attunement work, if all goes well, that contact restrictions may be relaxed to some extent.  However, on the evidence before me, it is evident that R cannot return to the care of her mother until she has made clear progress in psychotherapy.

108. Now that the local authority has undertaken (in terms which I consider to be as far as it could legitimately go, and which are far more extensive than in most cases) to approve and if necessary fund the psychotherapy, I consider that the court has the necessary information to make a final order.  That order must, of course, be the least interventionist order consistent with the child's welfare, which is my paramount consideration. In this case, however, I conclude that the right order in R's interests is for a full care order to be made on the basis of the care plan produced by the local authority, which I approve.

109. So far as the independent reviewing officer is concerned, I have no reason to believe that she will fail to take on board the change of perspective which has emerged in the local authority position during the course of the hearing, and I am pleased by the guardian's agreement to speak to her about those matters at the conclusion of the hearing.

110. I acknowledge, of course, the commendable progress that the mother has made during the course of these proceedings, and of course I pay tribute to her for all that she has done for R in the past.  However, it is my clear conclusion that, until she has made clear progress in the psychotherapy or psychodynamic counselling which Dr. Gardner has prescribed, the right course for her daughter is to remain in DHR where she currently resides under a care order.

111. So far as contact is concerned, I am satisfied that the current plan meets R's needs, and I approve the agreement as has been put before me.
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