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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Lancashire County Council v M & Ors [2022] EWHC 2900 (Fam) (27 October 2022) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2022/2900.html Cite as: [2022] EWHC 2900 (Fam), [2023] 1 FCR 234, [2023] 2 FLR 186 |
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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Lancashire County Council |
Applicant |
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- and - |
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M |
1st Respondent |
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-and- |
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F |
2nd Respondent |
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-and- |
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W (a Child, acting by his Children's Guardian) |
3rd Respondent |
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-and- |
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Lancashire and South Cumbria Integrated Care Board |
Intervenor |
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Mr Rex Howling KC and Ms Natasha Johnson (instructed by Paul Crowley Solicitors) for the First Respondent
Ms Lorraine Cavanagh KC and Ms Kerri O'Neill (instructed by Morecrofts Solicitors) for the Second Respondent
Ms Tina Cook KC (instructed by Vanguard Law) for the Third Respondent
Mr Martin Downs (instructed by Hill Dickinson) for the Intervenor
Hearing dates: 24th October 2022
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Crown Copyright ©
MR JUSTICE HAYDEN:
"The parents have been mistrustful of and combative towards the staff appointed by [the care company], for example:
(i) They have insisted on having oversight of the training of carers at all times;
(ii) They have required the removal of two of the carers from their position on unreasonable grounds;
(iii) They alleged, without proper foundation, serious misconduct by the paediatric nurse with oversight of [W]'s care package and demanded her de-registration before their allegation had been investigated;
(iv) They have declined to co-operate with a review of [W] care package despite having complained that he is not being adequately supported by trained health care staff;
(v) On 03.03.21 [W] suffered a hypoxic episode in which his saturation levels dropped to below 85%. The threshold for calling emergency services during such an episode, according to his care package, is three minutes. The parents refused to permit the care staff on shift to call for an ambulance immediately after the threshold had been reached, causing him to remain dangerously desaturated for ten minutes.
e. As a result of the above, [the care group] gave notice on 4th March that they would no longer offer a service to [W] owing to the magnitude of the professional difficulties that existed between their staff and the parents by that date.
f. The parents have been unjustifiably critical of the standard of nursing care that would be afforded to [W] in a proposed admission to Alder Hey Hospital to investigate his hypoxic episodes. Their criticism and intransigence delayed the planned admission. This criticism continued when [W] was admitted to Alder Hey on a planned basis on 8th March 2021.
g. The parents have refused the services of [the hospice] for [W] on the unjustifiable ground that the nurses there would not be competent to care for him. By refusing to allow [W] to go to [the hospice] the parents deprived him of the social and recreational opportunities available to him and deprived themselves of much needed respite.
h. The burden of caring for [W] has had a deleterious effect on the mother's mental health and she has reported, at times, her inability to carry on looking after him. The parents reported that they had separated in 2020 due to the conflict that existed between them over aspects of [W]'s care. The father has not always supported the mother and has, on occasion, sought to undermine sensible decisions that she has taken.
i. [W] is alive to conflict and upset on the part of his parents. His self-harming behaviour, including breath holding episodes, has been observed to increase at such times.
j. On 08.03.21 [W] was admitted to Alder Hey Hospital for investigation into his hypoxic episodes. There were no carers available and willing to resume caring for him at home at the point of discharge. The parents will not be able to meet [W]'s needs by themselves without the required level of support from professional carers."
"There are certain features of the system around [W] which make it more, rather than less, likely that problems will arise in it. First, it is a very complicated system.
Second, the stakes are very high. Ultimately, this is about keeping a child alive and ensuring his best possible quality of life.
Third, commissioners face what many would consider to be impossible decisions about resource allocation.
Fourth, care work is intrinsically stressful, and the pressures on health professionals and care staff have been vastly increased by the Covid-19 pandemic.
These factors all affect the emotional climate of the system around [W] and the relationships between those components of the system.
The system around [W] has become sensitised and inflamed. Feelings have run high and perspectives have become polarised and entrenched.
[M] and [F], individual professional staff and their organisations have become stuck in polarised beliefs about each other.
It has become difficult for the parents and for professionals to respond moderately in ways that sooth rather than exacerbate the dynamic tensions between the different parts of the system.
"I hope it will be apparent that this analysis does not apportion blame.
The family, commissioners and health and social care providers are all affected by the dynamic context in which they are trying to do their best.
Rather than looking to change the parents, I recommend a systemic intervention drawn from organisational psychology, psychodynamic psychotherapy, group analysis and systems theory.
The intervention would assist all agencies and the parents to understand the dynamic processes that have led to the current difficulties, to step back from mutual blame and recrimination, to establish working practices which will contain and diminish sensitivities and optimise collaboration between the different parts of the system. (my emphasis)
I recommend that an organisational or a systemic supervisor/consultant is employed to work with the system and facilitate systemic meetings within which the aims set out in the paragraph above would be addressed.
The involvement of the Court has radically shifted the dynamics of this system.
The involvement of their legal representatives and of the Court, a neutral authority, has diluted the emotional intensity of the polarised "them and us" dynamic which previously existed between the parents and the health/care providers."
"In this case, the ICB has sought to assist the Court and has been joined as an Intervener. It has participated with the parents and the rest of the multi-disciplinary team about the development of a reasonable bespoke plan for care for W at home with support. However, matters have now reached a point where these proceedings should be concluded."
"(5) Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all."
Whilst this provision does not create a presumption of no order, it mandates the Court to consider whether no order would be a better outcome for a child.
(3) In the circumstances mentioned in subsection (4), a court shall have regard in particular to—
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his which the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(g) the range of powers available to the court under this Act in the proceedings in question.
(4) The circumstances are that—
(a) the court is considering whether to make, vary or discharge a section 8 order, and the making, variation or discharge of the order is opposed by any party to the proceedings; or
(b) the court is considering whether to make, vary or discharge a special guardianship order or an order under Part IV.
Section 7(1)(b) Human Rights Act 1998 states-
"7 Proceedings.
(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may—
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act."
"We submit that this case falls into the first category and that it is safe for this court to conclude that it is obvious that the local authority cannot establish the threshold criteria. The key to that conclusion is in the attributability condition, as your lordship foreshadowed in your judgement of October 2021."
"[19] It is important to emphasise that the provision "not being what it would be reasonable to expect a parent to give" is not to be regarded as an abstract or hypothetical test but must be evaluated by reference to the circumstances the parent is confronting i.e. what would it be reasonable to expect of a parent in these particular circumstances, recognising that in a challenging situation many of us may behave in a way which might not objectively be viewed as reasonable. The test is not to be construed in a vacuum nor applied judgementally by reference to some gold standard of parenting which few (if any) could achieve. On the contrary, it contemplates a range of behaviour, incorporating inevitable human frailty. The reasonableness of the care given requires to be evaluated strictly by reference to the particular circumstances and the individual child."