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Cite as: [2018] EWHC B63

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This judgment was delivered in private. The judge has given leave for this version of the judgment to be published. 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.

Case No: ZE17C00507


Westferry Circus, E14
23rd April 2018

B e f o r e :


London Borough of Barking and Dagenham

Mr and Mrs X


Y (by his guardian)


Ms Mustafa for the London Borough of Barking and Dagenham
Ms Prolingheuer for Mr and Mrs X
Mr Hussein for Y by his Guardian
Hearing dates: 19-23 March and 10-11 April 2018



Crown Copyright ©

    Her Honour Judge Purkiss sitting a Deputy High Court Judge:

  1. This is an adjourned final hearing in care proceedings brought by the London Borough of Barking and Dagenham ("the LA") in relation to a young person Y born in 2001.
  2. These are the second care proceedings in relation to Y. The first proceedings concluded by consent in April 2016 with no order on the basis that Y remained placed under Section 20 Children Act 1989 in a residential unit called Island Lodge, where he had been since December 2015, again accommodated under Section 20. Subsequently Y's placement has been pursuant to an Interim Care Order and Deprivation of Liberty Order ("DoL").
  3. The local authority, represented by Ms Mustafa of counsel, applies for a care order under Section 31 of the Children Act 1989 and for an order declaring that it is lawful for the local authority to deprive Y of his liberty.
  4. Y is the child of the First and Second Respondent parents. Mr and Mrs X are represented by Ms Prolingheuer of counsel. Mr and Mrs X oppose the application for a Care Order and DoL and submit he should return home to their care.
  5. Y is represented by his Guardian Lara Bloom and by Counsel Mr Hussein. Y's Guardian supports a Care Order and DoL order.

  7. By the end of the hearing the factual issues, in particular issues about the quality of care Y had received at Island Lodge and whether or not it was a suitable placement for Y, had narrowed considerably. Shortly before the final hearing the LA abandoned Island Lodge as its proposed care plan for Y and instead proposed a different unit (M). Within the hearing there has been little challenge to the serious criticisms which the parents have made about Island Lodge. The issues I have to determine are:-

  9. I have read all of the evidence contained in the bundles placed before me and heard evidence from a number of witnesses: Dr Maxine Sinclair, Neuropsychologist and Consultant Clinical Psychologist; the mother, the father; Y's aunt; the social worker, Ms Merchant; Ms Nagra Head of Service, Disability Service (LBBD); Ms Stapleton, Unit Manager, Disability Service, (LBBD); Jo Wilson, Unit Manager Education and Care, LBBD, the child's Guardian; Ms Z, Manager of Island Lodge.
  10. I propose to deal firstly with the application for a Care Order and then with the application under the inherent jurisdiction of the High Court for an order permitting the LA to deprive Y of his liberty.

    The Law

  12. A Court cannot make a Care Order unless the circumstances at the relevant date are as set out in 31(2) Children Act 1989:-
  13. (a) that the child concerned is suffering, or is likely to suffer, significant harm; and
    (b) that the harm, or likelihood of harm, is attributable to—
    (i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him;
    (ii) or the child's being beyond parental control.
  14. In relation to establishing whether or not a child is suffering significant harm, the relevant date is the date of the application for a care order or, if temporary protective arrangements have been continuously in place from an earlier date, the date when those arrangements were initiated Re M (A minor)(Care Order: Threshold Conditions)[1994] 2 FLR 577, HL. The relevant date for the purposes of considering whether or not a child is likely to suffer significant harm is the same Southwark LBC v B [1998] 2 FLR 1095, FD. Information acquired during the course of the proceedings which sheds light on the child's circumstances at the relevant date can be taken into consideration.
  15. If the threshold for the making of a public law order is established, the court is then required to consider the LA plans for Y, keeping his welfare as the court's paramount consideration. The court must take into account all of the relevant circumstances in the case but in particular those matters set out in s1(3) CA 1989. Any delay in determining the welfare decision is likely to prejudice Y's welfare. The court should not make an order unless it would be better to do so than not.
  16. Article 8 and Article 6 of the ECHR are engaged in relation to this application. I must consider whether or not the removal of Y from his family is proportionate to the risk of harm to him in their family's care or the risks associated with removal. In evaluating which set of arrangements for his future are to be endorsed, Y's welfare is paramount. The court must undertake a global, holistic evaluation of each of the options available for Y's future upbringing before deciding which of those options best meets the duty to afford paramount consideration to his welfare.
  17. The standard of proof in relation to any disputed facts is the civil standard of proof, the balance of probabilities and the burden of proof rests with the Local Authority. It is not reversible and it is not for the respondent to establish that allegations are not made out. Re B [2008] UKHL 35. Findings of fact must be based on evidence not speculation. Re A (Fact Finding: Disputed Findings [2011] 1 FLR 1817.
  18. When carrying out an assessment of the evidence I remind myself that "If a court concludes that a witness has lied about a matter, it does not follow that he has lied about everything. A witness may lie for many reasons. For example out of shame, humiliation, misplaced loyalty, panic fear distress confusion and emotional pressure, R v Lucas [1981] QB 720.

  20. Y is one of three siblings. His siblings have no special needs and are well cared for at home by their parents. By contrast Y is a child with complex needs. He has a diagnosis of autism and a significant learning difficulty. He demonstrates challenging behaviours and is non-verbal.
  21. From 2009, Y's parents received a care package of support from the LA to enable Y to continue to be cared for at home. This package was revised on a number of occasions so that by the end of 2013, his parents were in receipt of 20 hours of respite care per week during term times and 30 hours during term breaks plus a "buddy club" for Y on alternate Saturdays. This support enabled the father to continue in employment.
  22. In about mid-2014, Mr X requested further assistance from the LA because of the difficulties in managing Y's behaviour in the home. The LA undertook a core assessment. At this time there was an issue in relation to Y's medication but the parents were struggling to manage Y's medical appointments whilst having the care of Y's younger siblings: Mr X had to work full-time and was unable to drive Y to appointments and Mrs X did not drive. The family requested assistance with transport. This request is characterised in the LA chronology as "parents ignoring advice [to take him to his appointments], placing Y at risk and showing a lack of care towards Y".
  23. During 2015, the LA became aware through a referral from one of the siblings' schools that the difficulties within the home had started to impact upon them. A referral was made to the "Additional Resources Team" ("ART") to undertake an assessment identifying additional necessary support.
  24. ART undertook a home observation which raised concerns about Y's care and the resultant impact on the parents' care of the younger children. ART offered an intensive parenting intervention, underpinned by a written agreement.
  25. During a meeting at the end of the assessment, the parents were informed of its findings. They disagreed with the criticisms of their care and felt they were being punished for asking for more help. They did however agree to participate in the parenting intervention as long as the level of support provided to the family previously remained at the same level.
  26. After the meeting the father appeared to resile from the commitment he and the mother had made regarding the parenting intervention. The social work chronology records that he told the social worker that he didn't want to participate until he and his wife had been able to receive legal advice and the Child In Need ("CIN") professional network could review the package. This is recorded in the social work chronology as "parents not working with professionals".
  27. In early September 2015 a multi-agency child protection strategy meeting was convened and it was agreed that the threshold was met for an Initial Child Protection Case Conference. When this took place in late September it agreed that all three children should remain under a CIN plan.
  28. In the months preceding Y's accommodation under section 20 in late December 2015, the parents' evidence (the detail of which was not challenged) and which I accept, was that there were frequent occasions when the carers who were meant to be attending the family home to assist in Y's care did not turn up, leaving the family without adequate support.
  29. However, at about the same time Y's behaviour within his family became more challenging. In late November Y attacked and assaulted his mother resulting in clumps of her hair being pulled from her head. This incident was witnessed by Y's younger siblings, one of whom called the police. The incident occurred, according to the parents, because Y was manhandled into the family home by carers who did not understand how best to manage him when he tried to get back onto the school bus (Y likes travelling by motor vehicle).
  30. There was another occasion when Y became upset in a shopping centre and security staff intervened because they were worried Y presented a risk to members of the public. It is easy to see how members of the public, unaware of Y's particular difficulties, might mistakenly think that he posed some kind of risk but I accept his mother's evidence that he did not pose a risk: he was merely upset. Nevertheless, this provides an example of how difficult it had become for her to manage Y that on the day matters escalated to such a point.
  31. Following this incident Y was taken to a local barber to get a haircut and it is said that Y's behaviour escalated once again. The LA contends that he picked up a pair of scissors and was brandishing them. There is no primary evidence of this. I accept mother's evidence that this incident occurred because Y lashed out when a head massage he was enjoying finished. I accept mother's evidence that he did not brandish scissors. Nevertheless this was an upsetting and unfortunate incident and it reflects the emerging serious difficulties which I am satisfied the parents encountered in managing Y's behaviour. These are corroborated by difficulties which were present within the school setting.
  32. At about the same time, staff at Y's specialist educational placement (TS) reported similar concerns in relation to escalating behavioural problems. There were reports of his assaulting members of staff and another pupil.
  33. A combination of all of these concerns led to a strategy meeting at the end of November 2015 when it was determined that a residential and educational placement was needed as a result of Y's complex needs and challenging behaviour.
  34. Y was subsequently accommodated by the Local Authority pursuant to Section 20 Children Act 1989 and placed with the parents' agreement at Island Lodge on Canvey Island: a 52 week residential placement.
  35. Y has remained placed at Island Lodge until part-way through this final hearing within the second set of proceedings.
  36. Shortly after his placement at Island Lodge, the LA commenced care proceedings. Those proceedings concluded on 4th April 2016. An agreed threshold within those proceedings reflected findings that Y was beyond parental control. The parents disputed the need for the court to make an order on the basis they agreed Y should remain at Island Lodge. The allocated district judge approved the continued placement of Y at Island Lodge on the basis he would remain there under Section 20 Children Act 1989. Subsequent to the conclusion of the first proceedings, Y remained at Island Lodge.
  37. The parents' case is that almost as soon as Y was placed at Island Lodge they started to have concerns about the care provided to him. However the documentation available at the time also indicates that they were supportive of the placement. I do not interpret this as indicating any sort of issue with regard to the credibility of the parents. It must have been very difficult for the family to adjust to (and accept) Y's placement at Island Lodge. They trusted the professionals advising them. The advice they received was that placement at Island Lodge was very much in Y's best interests. In that context, I can understand how they tried their best to put their misgivings to one side and to support the placement, even when from time to time they were worried about some aspect of Y's care. In that context whilst I am satisfied that their concerns about the appropriateness of Island Lodge as a placement for Y increased over time, at the time of the conclusion of the first set of proceedings the parents were still broadly supportive of his placement at Island Lodge and their concerns had not escalated to the point where they withdrew their section 20 consent. It is a matter of fact that the first set of proceedings which concluded in April 2016 resolved by consent on the placement issue.
  38. In the period between April 2016 and the next court application in March 2017 the chronology supports a finding that the concerns of Mr and Mrs X about the care provided to Y at Island Lodge had escalated.
  39. In March 2017, the LA applied for permission to invoke the Inherent Jurisdiction of the High Court for a permissive order to deprive Y of his liberty at Island Lodge. The statement of evidence filed in support of that application was dated 8th November 2016. The information contained within the statement was therefore, at least in relation to the chronology, four months out of date. Whilst the statement provided a broadly accurate description of Y's difficulties (including aggression) and the parents' difficulties in caring for him, it made no mention of the parents' concerns about Island Lodge, nor the need for regular restraint. It did say that "Y has settled very well at Island Lodge it affords him stability and a high level of support and care which is essential for children which [sic] such high care needs".
  40. I consider that this statement of evidence was misleading. By then the Xs concerns about Island Lodge were significant. They worried about an unnecessarily high level of restraint deployed by staff. Y didn't seem to the parents to be consistently happy at Island Lodge. There was no appropriate educational provision for Y. He had lost a significant amount of weight and the parents felt that they were sidelined on the issue of his medical/health needs. Finally requests for contact at home had been refused.
  41. A DoL order was granted by Parker J on 18th May, to be reviewed 6 weeks later at further hearing. A Guardian was appointed, Lara Bloom, the same Guardian who represented Y in the previous care proceedings and is representing him in these proceedings.
  42. At the beginning of May 2017, there was an incident at Island Lodge. A member of the teaching staff at Ocean Lodge, the educational unit attached to Island Lodge, reported that a member of staff from Island Lodge had assaulted Y by pushing him hard into a room so that he bounced off the wall. The LA was notified of this incident on 4th May. The Local Authority Designated Officer was notified. It does not appear that Island Lodge informed the parents of this incident. The LA chronology indicates that Island Lodge did not know whether or not the parents had been informed but is then silent as to when and whether the parents were notified. This incident was investigated and no further action was taken. I have been told by the manager of Island Lodge that the alleged perpetrator of the assault gave an account of lawful restraint, supported by another worker which conflicted with the account of the teacher and the matter ended there; documentation has been provided recording this decision.
  43. During this hearing (and before this hearing by order) I had required the LA to provide all of the documentation from Island Lodge about that incident. The LA could not effect full disclosure as ordered because despite repeated requests, Island Lodge did not provide full disclosure to the Local Authority. Despite Ms Z assuring me during her oral evidence that full disclosure would subsequently be provided, disclosure remains incomplete and does not include all of the statements of the key witnesses.
  44. On 8th May 2017 (according to the parents' counsel's Position Statement for the ICO) or 6th June 2017 (according to the SW evidence at C35), the parents notified the LA by email that they intended to withdraw their consent to Y remaining accommodated at Island Lodge.
  45. On 3rd July 2017 the LA applied for a Care Order in the Family Court at East London. It is clear that the application was made some time after it had been decided to issue proceedings because the first statement is dated 1st June 2017. In the SW's statement, the chronology refers to the May incident and the LA attempts to follow it up but in the body of the statement there is no analysis of this and other issues arising out of the parents' concerns. The statement says: "Y presents as very settled and happy at Island Lodge and has a good attachment with staff there". It records the view of the Independent Reviewing Officer ("IRO"), that he had "no reservations whatsoever over the quality and extent of care and education provided by Potton Homes (Island Lodge) and Ocean Lodge Independent School, respectively….I support the LA application for an Order given the parents' removal of hitherto 'consent' for Section 20 accommodation". I have no doubt that the statement accurately reflected the views of the social worker but the statement was misleading. It did not engage with any of the issues raised by the parents and was completely one-sided. Having heard the social worker's evidence, I accept that this was unintentional. She is a committed and dedicated social worker who has tried hard to manage this case. She made the mistake when she assumed responsibility for this case, however, of dismissing the parents' concerns and relying too heavily on other professionals. The effect of this was that Y's placement lacked appropriate scrutiny.
  46. Ms Bloom was appointed as Y's Guardian within the care proceedings. She filed an initial analysis on 26th July, in which she records the "parents very serious concerns in respect of Y's emotional, behavioural and physical welfare". Ms Bloom visited Y in placement: "I was quite shocked at his dramatic weight loss and his parents are right to be concerned about him." However, following her discussions with Y's key worker, she was satisfied that "the placement are as concerned as the parents about Y's weight loss and they are taking appropriate action". She noted that the IRO reported no concerns about Y's placement. Ms Bloom supported the making of an Interim Care order to keep Y at Island Lodge and agreed that he should be subject to continuing deprivation of liberty. Ms Bloom's analysis included a table recording incidents of restraint of Y recorded in the placement incident book in the year December 2015 – December 2016.
  47. On 27th July, Recorder Ray heard an application for an interim care order ("ICO"). The order records that the parents neither consented to nor opposed the making of an ICO but raised significant concerns as to the care given to Y whilst at Island Lodge in particular his loss of weight, the amount of times restraints are used. Following submissions, Recorder Ray made an ICO. Her order from that day records her invitation to the LA to consider their future plans for Y into adulthood considering his age and to include this in their final evidence. She also invited them to consider the need for an autism expert overview, and directed that any Part 25 application for such an expert should be heard by HHJ Atkinson on 5th September in front of whom she listed the matter. Other timetabling directions were made including a parenting capacity assessment by an Independent Social Worker, PM.
  48. On 2nd August 2017, Mrs Justice Roberts dealt with an application in boxwork by the LA to transfer the application for a DOL order (which was listed for review in the High Court on 8th August pursuant to the May order of Parker J) to East London Family Court ("ELFC") to be heard alongside the care proceedings. She directed the proceedings be transferred to ELFC to be heard by HHJ Atkinson (sitting as a s9 Judge of the High Court).
  49. In August 2017, a further referral to the LADO was made because of an occasion when, contrary to the standing instructions from the LA to Island Lodge about the need for constant waking supervision, Y had been left unattended and soiled himself. A member of staff at Island Lodge complained about the treatment of Y by another member of staff who had allegedly sworn at Y in a humiliating way and made him clean up the mess, causing Y distress.
  50. On 5th September, both applications were listed before HHJ Atkinson. The Case Management Order from that hearing records that the parents were very concerned about Y's care at Island Lodge "and the manner in which he is being treated particularly in light of the incident of 26th August" and that they wished interim contact to take place in the family home. Y's Guardian supported the continuation of the ICO and sought a final hearing at the earliest opportunity. The court extended the DoL order to a hearing listed before Judge Atkinson on 15th September.
  51. On 15th September, Judge Atkinson was unavailable to hear the case and released the case to Recorder Isaacs QC sitting as a s9 Judge. The parents sought Y's immediate return home. The Guardian supported continuing the ICO and a DoL order. Recorder Isaacs QC extended the DoL order to the final day of the care proceedings which she listed before me for 3 days on 15th December. Her judgment is at B25 of my bundle.
  52. On 9th November the case was listed before me for the first time for an Issues Resolution Hearing. I was informed at this hearing that the parents were very concerned about the arrangements for Y's care at Island Lodge and contested the care proceedings. The LA long term plan was for Y to remain at Island Lodge. The Guardian had not formulated her final analysis but had no concerns about his remaining there in the interim.
  53. It was not possible to conclude the IRH because I agreed with the parents (as did all of the parties with different emphases) that the report of the ISW directed at the July hearing appeared to be superficial. It made no attempt to engage with any of the criticisms the parents made of the care provided to Y by Island Lodge. The parents were very unhappy with the report but had issued no application under Part 25 for a report from a different expert. Mindful of the length of the proceedings, I directed further focused written questions to the ISW to be provided in advance of the adjourned IRH in the hope that sufficient information would be available to enable a fair determination of the issues. Any party seeking permission to instruct an expert was to issue an application in advance of the next hearing.
  54. In addition I directed the LA to provide information about the support which would be made available to the family if Y returned home; the operational instructions provided by the LA to Island Lodge regarding Y's care and also all incident logs compiled by Island Lodge since July 2017 relating to Y.
  55. It was clear that the time estimate of 3 days was inadequate because there was no agreement between the LA and the parties at this stage about the quality of care provided to Y by Island Lodge. I re-listed the case on the first available date before me with a time estimate of 5 days (19th March 2018). Despite efforts to list the matter earlier, it was simply not possible to do so. A day of the December hearing was retained to deal with DoL issues and to revisit the question of the ISW report.
  56. The hearing on 13th December had to be adjourned to 19th December as a result of judicial unavailability. On 19th December it emerged that no questions had been sent to the ISW before 13th December when the advocates and parties had assembled for the abortive IRH. Extensions were granted in relation to several timetabling directions which had not been complied with including that the LA was directed to file "all documents which relate to the alleged incident at Island Lodge on 26th August 2017 and the log book for the relevant date and all internal documents relating to the incident and all communications sent by Island Lodge in respect of this incident". Consequently, I had to adjourn the IRH again to the new year.
  57. By the time of the adjourned IRH in January, the ISW's replies to the questions had been received but appeared to me, yet again, to fail to deal in a sufficiently detailed and analytical way with the serious issues raised. For the avoidance of doubt I have not relied on this report (nor have I been invited to do so by any party) when reaching my conclusions about the parents' capabilities as a carer for Y.
  58. By January the parents had issued an application under Part 25 for a psychologist to undertake a comprehensive assessment of Y, his needs and placement options. I granted that application. Dr Sinclair, Neuropsychologist and Consultant Clinical Pyschologist with expertise in autism was instructed to assess Y and prepare a report by 15th March, just before the final hearing.
  59. At that hearing, all parties agreed and the court decided that a specific fact finding hearing into the allegations about the care provided to Y during the August incident was unnecessary on the basis of the following agreed facts:
  60. a) Y was allowed to be unobserved for longer than was reasonable, enabling him to defecate on the floor;
    b) Y had a listening device used by staff when he was asleep in his room. This was left in the office and the allocated 1:1 worker did not have it with him as he should have done;
    c) Y's defecating on the floor and his subsequent distress was avoidable had there not been poor practice;
    d) The response of staff members including saying "he's done a shit" was unreasonable because it caused Y distress in the tone used towards him and the requirement that he assist in cleaning up by making him dispose of the stool.
    e) As a result of the above handling of the incident Y was unable to attend an opticians appointment late that same day
    f) Proper recording procedures were not followed.
  61. Despite the parties agreeing these facts, very serious criticisms had been made of the care provided to Y by Island Lodge not only in relation to the May and August incidents but in relation to other aspects of Y's care. It was necessary for Island Lodge to have notice of those criticisms and an opportunity to respond to them so that the court could fairly resolve the issues in the case. The LA was responsible for writing to Island Lodge so that Island Lodge could apply to intervene if desired. Island Lodge made no such application.
  62. The final hearing in this matter commenced on 19th March and continued until 23rd March, by which time I had heard the local authority evidence from Ms Merchant the social worker, Ms Nagra (Head of Service), Ms Z (Island Lodge) and part of Mr X's evidence. Part way through the hearing the LA abandoned its case that Y should be moved to P and instead adopted the suggestion of Dr Sinclair that he should move to M, a specialist residential placement for autistic children and young adults. However, M had not seen Y and decided whether or not it could offer him a place.
  63. The case did not conclude within the 5 days allowed and had to be adjourned to 9th and 10th April when it continued, the evidence concluding late on 10th. All advocates agreed to lodge written submissions by 12th. I asked them to address the issue of threshold in their submissions. In the event, all of the submissions were received after hours on Friday 13th which resulted in my not seeing them until Monday 16th. This meant that I could not give judgment as I had hoped on 20th and I had to re-list the matter for judgment today.
  64. I indicated to the parties that I was minded not to extend the DoL order, having heard the evidence of the manager at Island Lodge and the evidence of Dr Sinclair. The LA had by this stage decided that it would be better for Y to move from Island Lodge without delay. I agreed. Two senior members of the local authority's Disability Service, Ms Nagra, Head of Service and Ms Stapleton, Unit Manager had attended and given evidence. They remained in court for the rest of the hearing. Both assured the family that they were very sorry about Y's experiences in LA care. Ms Nagra said that every effort would be made to ensure that this was a learning experience for the LA and that the mistakes, both individual and systemic, which had been made previously would not be repeated. In order to ensure that Y was well and safely cared for in the interim, Ms Nagra's sourced a bespoke single person placement intended to provide a safe holding arrangement for Y pending the court's judgment.
  65. I am entirely satisfied that when Ms Nagra and Ms Stapleton understood how harmful Y's experience in Island Lodge had been, they acted appropriately to ensure that his care was prioritised and that he moved without delay to a placement which allowed him, as Dr Sinclair recommended, to have ongoing contact with his family. It is however, highly unfortunate that this had not occurred until part way through the final hearing in this case.
  66. Mr Jo Wilson the Unit Manager for Education and Care at the local authority attended to give evidence about the selection of Island Lodge in which he had some input. He agreed that the LA had looked at a couple of specialist schools alongside Island Lodge but unfortunately they had no availability. He agreed that it was unfortunate that it had taken 2 years to finalise Y's Education Health and Care Plan ("EHC"). He said this was partly explained by the fact Y was placed away from the LA area and there were approximately 1500 statements of educational needs outstanding which required updating. This had caused a backlog. He agreed there had been a delay in the educational provision for Y but according to the information received from by the LA from Island Lodge, Y had been in education from July 2016. In terms of monitoring what education was provided, this was a matter for annual review and the PEP process. He agreed that it was unacceptable that the speech and language referral which had been made had not been actioned promptly with the result that there was a delay until October 2017 in providing any speech and language therapy to Y. He agreed that it had been an oversight that this was not noticed by the LA. He was unaware that the member of staff assigned to teach Y could not use PECS but agreed that enquiries had not been made to ensure that she did.
  67. The LA has accepted, quite rightly, albeit it very late in these proceedings, that the care provided to Y has been inadequate. Alongside the criticisms of Island Lodge's care of Y, set out below, the LA must accept (as it does) criticism for:-
  68. (i) Failing to identify that Island Lodge was inappropriate for a child with Y's disabilities before it advised the parents to agree to Y being placed there;
    ii) Failing to identify it was inappropriate for a child with Y's difficulties after he was placed;
    iii) Accepting assurances from Island Lodge (for example in relation to the May and August incident) without adequate further investigation;
    iv) Failing to challenge other aspects of Y's care which had been poor (for example the failure to organise speech and language therapy);
    v) Failing to realise that Island Lodge had not organised any education for Y for 2 years and that when it started providing some education the allocated teacher could not utilise PECS;
    vi) Failing to realise that Y was unable to communicate with anyone at the unit other than through his behaviour because PECS was not utilised;
    vii) Dismissing the parents' criticisms without sufficient enquiry
    viii) Failing to challenge the level of restraint;
    iv) Failing to draw together all of the information which was available which supported an analysis that contrary to the social worker's evidence, Y was in fact unhappy at Island Lodge and not being cared for well in that environment.
  69. Once Y moved to the single person placement during the two parts of this hearing, the parents say that there were organisational difficulties resulting in Y's moving twice. This is accepted. The parents also raise concerns about the quality of staff assigned to work with Y. I accept the parents' evidence. These matters are significant. Not only do they reflect on the LA as corporate parent but they underline just how very difficult it is for a LA to exercise PR to manage and organise care on a day to day basis for a young person with Y's high level of needs. Inevitably the practicalities of care have to be delegated. Once that happens, a LA relies on the information provided by those at the residential unit caring for the child or by other agencies in relation to the competence and quality of staff. After all of the failings in the care provided to Y at Island Lodge and the LA's sincere apology for those within this hearing, reinforced by the commitment of the LA to ensure these are not repeated, it is concerning that further valid criticisms have been made of the interim arrangements. This emphasises the significant disadvantage of these aspects of parental responsibility being exercised administratively by a statutory body rather than by devoted parents.

  71. Ms Z from Island Lodge gave oral evidence. She is the manager of Island Lodge and gave evidence to respond to the serious criticisms of the care of Y. Many of these criticisms were accepted by her during the course of cross examination, for example that there had been poor practice in relation to the August incident. In addition, she accepted that some of the restraint logs indicated that de-escalation techniques had not been applied before there was physical restraint. In this regard her evidence was frank. There were however other aspects of her evidence which supported an interpretation that her primary motive was to prevent serious criticism of Island Lodge rather than to engage transparently with the court process. So for example, an issue was raised during the hearing about the training of staff in restraint/de-escalation techniques and Island Lodge was required to provide information about this. A schedule was emailed over to court but the schedule related to the wrong time period. Ms Z was aware of this deficiency. I asked her at the end of her evidence if she could provide information for the relevant period and she assured me she would. The new information which has been provided does support her assertion that all staff working with Y had undertaken the necessary course. However, this new document is undated and, unlike the previous document provided during the hearing, gives no information about the period of time which the relevant training courses covered. Interestingly it also includes an "autism awareness" course but again no information is provided about when this course was undertaken or the period it covered. This is disappointing as Ms Z was aware that the timing of the training was a matter which was of particular interest to the court and that this was the very reason why she had been asked to send more information. As a result of this, there is still a question in my mind about whether or not members of staff at Island Lodge working with Y and restraining him during the period of his residence at Island Lodge had received appropriate training. Similarly, in relation to Dr Sinclair's evidence about the manifest lack of understanding demonstrated by Y's key worker in her discussions with him about autism, she was unable to explain why, given his lack of knowledge of autism, this particular key worker had been assigned to work with Y. She told me that he was a very experienced senior worker at Island Lodge but accepted that she did not know if he had experience in working with non-verbal autistic children. She gave the impression that she had not given this issue much, if any, thought prior to his allocation to work with Y. Island Lodge was not a specialist autistic school, she said, and it relied on advice from a specialist Occupational Therapist to assist staff in working with autistic children but she could not explain why it had taken until November 2016 (nearly a year after Y's placement) for Island Lodge to obtain advice from the Occupational Therapist for Y. Asked about his keyworker's training in dealing with autistic children she explained that members of staff were trained annually by Occupational Therapy and had done the National Autistic Society online training module covering the autistic spectrum. Unfortunately, this did not appear to have resulted in Y's keyworker having any proper understanding of autism (see below). Asked about the fact that Y was the only austistic child on site who was non-verbal (according to Dr Sinclair), she disagreed and indicated there was another non-verbal child who had been in placement for 2 years. If this is true, it throws further into question the failure of staff members adequately to utilise PECS. In fact, Ms Z said that she had been unaware that PECs was Y's main communication tool, despite seeing the chair of reviews communicating with him via PECS. She did not think that the keyworker understood what PECS was as he had confirmed that the unit was using PECS when it was not: it used something called widget. She confirmed that she was unaware of whether Island Lodge informed the parents of the May incident.
  72. There is no longer any dispute about the fact that the care provided to R at Island Lodge was not only inadequate but positively harmful. The evidence of Dr Sinclair, unchallenged on this issue, supports such a finding. Her evidence provides a damning overview of Y's care at Island Lodge. She was so troubled by the circumstances in which he was being cared for that she telephoned the lead solicitor instructing her immediately after her visit in order to record her concerns. Her criticisms are set out in a comprehensive, compelling and persuasive report dated 26.2.18. In addition she has given oral evidence. I found Dr Sinclair an insightful, knowledgeable and fair witness. I accept her evidence without hesitation. The key points emerging from her evidence regarding Y's experience at Island Lodge/Ocean Lodge are set out below:
  73. i) There have been "worryingly high" incidents of restraint of Y [E57;]

    ii) Members of staff who had been involved in the May 2017 and August 2017 incidents were allowed to have continued contact with Y causing him distress and likely increasing his challenging behaviour. Dr Sinclair noted that one of the members of staff involved in the August incident had been involved in the two recorded restraints in February 2018.

    iii) Some of the records indicate that de-escalation techniques were not applied before physical restraint was deployed.

    iv) Record keeping in relation to restraint was "poor". Two incidents of restraint by staff were reported to Dr Sinclair in February 2018 but had not been included in the restraint log, nor had an incident which occurred during contact and at Ocean Lodge in the week of 19.2.18. This supports a finding that the level of restraint deployed in relation to Y has likely been higher than the records at Island Lodge indicate.

    v) Dr M Khraishi, Associate Specialist/Acting Consultant Child & Adolescent Psychiatrist, at the Emotional Wellbeing and Mental Health Service reviewed Y on a 3-4 monthly basis after his placement at Island Lodge. He saw Y on 7.3.17 and recorded in a letter to his GP (F76) that he was pleased to have been informed by the Island Lodge staff accompanying Y to the appointment that Y's behaviour at Island Lodge was manageable and had not required any physical restraints since our last appointment in November 2016. He was said to be communicating more and his concentration had improved so he was able to complete various tasks at college and read up to 20 minutes. Dr Khraishi was provided with false information by staff at Island Lodge. Within this period there were physical restraints of Y and Y was unable to read for 20 minutes.

    vi) Y has engaged in self-harming behaviour at Island Lodge but this had not been observed when Y was at home E58;

    vii) Y's challenging behaviour has deteriorated in the period he has been accommodated at Island Lodge. Such behaviour is now part of his behavioural repertoire. The absence of effective communication between Y and his carers may have contributed to these escalating behaviours.

    viii) Island Lodge is described in its 2014 Ofsted report as a unit for children with learning disabilities but not autism. At the time Dr Sinclair visited Island Lodge, Y was the only non-verbal child on site. I accept Dr Sinclair's evidence on this point.

    ix) Staff did not have appropriate skills to support or develop Y's communication. PECS should have been utilised to enable Y to initiate communication with caregivers but was not deployed. Instead a similar tool was used as a visual timetable when workers wanted to communicate with him.

    x) Y's keyworker thought he "could understand" and that he communicated through Makaton. Dr Sinclair saw no evidence of Y using Makaton.

    xi) Y's keyworker was taken by surprise when asked by Dr Sinclair for a description of autism. He told her it was "a medical condition the young person has. It makes them act "abnormal" sorry for using that word. What I mean by abnormal is you can't expect them to think or feel the same as you do. They struggle with anxiety. I know it is a broad condition". When pressed by her about what else he knew he said "mainly anxiety and they need time to process information" but said he was unable to add anything else as he had not been prepared for the question.

    xii) There has been no evaluation of Y's communication needs at Island Lodge. He was seen by a Speech and Language Therapist in December 2016 but nothing happened after that. A further referral was made in October and Speech and Language Therapy only commenced in February 2018.

    xiii) Members of staff have not learned PECS from an accredited course. Instead as Dr Sinclair was told, they have watched a YouTube video. Dr Sinclair searched for a training video for PECS on YouTube but could not find one. She found a video of a review by the co-developer of PECS which explicitly cautioned that it was an overview and not a training seminar and she also found a few training videos which are not training courses.

    xiv) Y did not have access to the PECS cards which were only brought out when staff wanted to prompt him to make choices. Consequently, Y could only respond to but not initiate communication exchange.

    xv) Y has been denied the opportunity to have contact at home because it will be confusing for him but there is no evidence of this as it has not been tried;

    xvi) Y received no education at Island Lodge from December 2015 – October 2017.

    xvii) In October 2017 a class teacher at Ocean Lodge was engaged to teach Y two days per week but had no previous experience in teaching children with severe autism and severe learning disability.

    xviii) Ocean Lodge is a school for children with emotional and behavioural difficulties. The Ofsted report was poor, one example being that teaching assistants at Ocean Lodge had a lack of understanding of how to meet pupils' academic needs. When Dr Sinclair visited she was alarmed to be informed that provision was undertaken by care staff who have no teaching qualifications.

    xix) When Dr Sinclair visited, Y was being "educated" away from the main school in what she described as a "little hut in the garden" which was "tiny and made the risk of injury to others high if there were an aggressive outburst" .

    xx) Y did not commence full-time education until December 2017 some two years after he had been placed. The education provided by Ocean Lodge was pitched at the wrong level and did not utilise visual support. The physical environment was inappropriate. Although the independent social worker had criticised the parents for their "unspecific plans for education", Dr Sinclair observes that he made no criticism of Island Lodge/the LA for their manifest failures in this regard.

    xxi) During her visit, Dr Sinclair noticed a change in Y that was very suggestive of a seizure. The care staff thought that the change in Y was suggestive of "aggression". She recommended a re-referral to neurology.

    xxii) Staff appeared to be hyper-vigilant for outbursts, making numerous predictions of imminent outbursts from Y which did not materialise and when Dr Sinclair did not detect any signs of likely outbursts. Dr Sinclair was concerned that this hyper-vigilance might influence how staff reacted to Y.

    xxiii) Y needed care and education provided by staff who have expertise in severe learning disability and autism. Island Lodge and Ocean Lodge have no such expertise. The provision was and is completely inappropriate for Y.

    Conclusion re Island Lodge

  74. Island Lodge was never the right place for Y, nor was Ocean Lodge the right school. I am told by those witnesses who have given evidence for the LA that they thought they were buying care and education for Y which was far different from that which was provided. If that is right, the LA did not exercise due diligence in relation to the selection of this unit nor did the LA adequately monitor it afterwards.
  75. Y was placed at Island Lodge pursuant to section 20 Children Act 1989 in December 2015. This placement was approved by the court in 2016 but until the DoL order made on 18th May 2017 by Parker J, there was no lawful basis for the deprivation of Y's liberty at Island Lodge.
  76. Basic aspects of Island Lodge's profile (for example: the school being for young people with emotional and behavioural difficulties) are acknowledged now as indicators that it was the wrong place for Y. The staff were not trained to look after a child with Y's disabilities, the most obvious example of which was that his keyworker did not appear to even have a basic understanding of autism.
  77. There was no education for Y within the placement for 2 years. I accept that the LA was given the wrong information about what was being provided to Y. However, despite the parents raising concerns, the fact is that nobody within the LA appeared to know that he was not receiving any education. Nor did anyone from the LA investigate whether he was being provided with care which the LA thought it had bought for him. Consequently, nothing happened to redress this serious failing in his care.
  78. Staff at the unit did not know how to communicate with Y and were hyper vigilant he would become aggressive. This led them to exercise unnecessary and probably unlawful restraint.
  79. Island Lodge has provided a schedule of restraints, after submissions (despite it being promised earlier) which all parties agree I can/should consider solely for the purposes of identifying the number of incidents of restraint recorded by Island Lodge rather than for the purpose of considering the self-serving explanations advanced by Island Lodge as to why restraint was deemed necessary in any situation (about which there has been no evidence or investigation by this court because of its late delivery).
  80. The schedule spans the period 23rd December 2015-27th March 2018. There are 199 separate recorded incidents of restraint (my emphasis). This figure, given Dr Sinclair's evidence about the poor record keeping is likely to be inaccurate and it is likely, I find, that Y was restrained on more occasions that those recorded. Some items on the schedule are represented as single incidents but on closer inspection include multiple applications of physical restraint. According to Ms Z they were referred to as one incident because they arise out of the same event or series of events. Some of the examples on this schedule may have been occasions when restraint was justified. It is not possible to be clear about this in part because of the poor record keeping. I agree with Ms Prolingheuer that little weight can be attached to the document produced by Island Lodge as it was produced so late and is entirely self-serving. I am satisfied, as Ms Z conceded under cross examination, that according to the records there appear to have been occasions when appropriate de-escalation techniques were not utilised and where the restraint of Y was probably unlawful (for example G143). Dr Sinclair's evidence supports a finding that staff were hyper vigilant to aggressive outbursts from Y when there was little objective evidence to support such an approach. In light of all of this evidence, whilst I have not heard evidence about specific incidents on the schedule I am satisfied on the balance of probabilities that Y has probably been restrained unlawfully at Island Lodge.
  81. Ms Z also conceded that the Island Lodge review of incidents of restraint was inadequate. This represented another failing in the care provided to Y.
  82. Dr Sinclair's clinical experience was working as part of a Tier IV service to children with the level of Y's disabilities. Her evidence was that her team did not advise or utilise the use of restraint on young people such as Y, although she accepted that NICE guidelines indicated that such could be used.
  83. I find the evidence about the level of restraint deployed to control Y alarming and extremely concerning.
  84. I am satisfied that Y has been harmed by the ill-judged, ill-informed and far too casual approach to restraint.

  86. In its application and final threshold document, the LA asserted that the threshold was established on the basis of the first limb of s31(2) (not receiving the care reasonably expected from a carer). It asserted that the relevant date was the date of Y's accommodation at Island Lodge (i.e. the relevant date in the first set of proceedings).
  87. At the conclusion of the evidence, Ms Mustafa now submits that the threshold criteria is established under the second limb of s31(2)(b): Y is likely beyond the control of his parents. This finding was conceded in the first proceedings and nothing has changed so as to improve the parents' ability to manage Y. Ms Mustafa submits that the relevant date is the date of the application. Mr Hussein agrees with this analysis.
  88. In their evidence, the parents said that they were not properly represented within the earlier proceedings and that they never accepted that Y was beyond their control before he was accommodated. However, the order made at the conclusion of the 2016 proceedings was made by an experienced district judge. It records they were present, represented and agreed to the findings. Those findings have never been appealed.
  89. The parents indicated that on the basis of the past findings, the court was entitled to find the threshold established in this hearing if the relevant date was the same. Ms Prolingheuer submits that the correct date for the assessment of threshold in these proceedings is the relevant date from the first proceedings because the protective arrangements in place for Y have been in place since December 15. I do not accept that analysis. It ignores the fact that the arrangements by which Y was placed at Island Lodge were expressly approved by the court following agreed threshold findings in the first set of proceedings and cannot, in those circumstances, be accurately described as temporary protective arrangements. In my judgment the correct approach in these circumstances, where a child has been placed long term and with the express approval of the court in a residential placement under s20 Children Act and the LA has invited the court for a second time to consider whether threshold criteria is established is to look to the circumstances at the relevant date in relation to this application. That date is 3.7.17.
  90. Considering the threshold on 3.7.17, if the LA had continued to advance its case under the first limb (significant harm attributable to care received not being reasonable), the difficulty is that although Y was suffering harm at the relevant date it was attributable not to any care provided to him by the parents (who have been justifiably complaining about the care he has been receiving) but by the LA to whom the task had been delegated. The withdrawal of parental consent to section 20 accommodation was, given the findings I have made about the care Y received at Island Lodge, entirely justified and what one would expect any competent carer to do in the circumstances.
  91. However, the LA does not now put its case in that way. It relies on the second limb of threshold and asserts that at the relevant date Y was likely to suffer significant harm attributable to the fact he was beyond parental control.
  92. The parents conceded threshold on the basis Y was beyond parental control in December 2015 although they now dispute ever agreeing. I have every sympathy for the parents' situation. Sidelined, aggrieved and frustrated over a period of some two years, they do not want to renew a concession which might have the effect of increasing the prospect of Y remaining in the care of the LA.
  93. However, on the evidence I have heard and read, they correctly accepted that Y was beyond parental control in December 2015. By that date they were asking the LA for more assistance and support for the simple reason that they could not manage without it. There had been a number of incidents of challenging behaviour by Y which they had been unable to manage.
  94. Dr Sinclair's evidence supports a finding that Y is likely to be more difficult to care for now than he was in 2015 because of the care he has received at Island Lodge. I accept that the parents have, during the increased contact they have had with Y, provided him with much affection and been able to manage his care reasonably well. However, they are doing so somewhere other than at home and not 24 hours per day, 7 days per week. In addition, this arrangement has been time limited. As recently as February, Y struck his father during an incident in contact. Father has an explanation for how that incident occurred which minimises the difficulty he faced in dealing with Y on this occasion. However, even if I am wrong about that and father is right, this is an example of the type of incident which might well recur if Y were placed at home, given Dr Sinclair's evidence that challenging and aggressive behaviour is now part of Y's repertoire of responses. This is a particular issue upon which Dr Sinclair was very clear that Y required intensive work.
  95. I am satisfied on the balance of probabilities that if placed at home Y would likely suffer significant harm attributable to the fact he is beyond parental control.
  96. PLACEMENT of Y – Has the LA proved that it is in Y's welfare interests to be placed at M or should he be placed at home?

  97. The parents have given oral evidence before me as has a paternal aunt. Y comes from an extended, close and loving family, the members of which are committed to helping and supporting each other. Both M and F impressed me as devoted parents who are committed to their family and committed to Y. They are respectable hard-working members of society. They have, given my findings on the chronology, demonstrated an ability to work with professionals rather than against them and have been battling for years to ensure that their son receives the right support and services given his disabilities. They are strong advocates for Y and have been relentless in their pursuit of assistance for his needs. In addition, they have been determined to pursue a case that Y should move from Island Lodge in the face of a wall of professional denial, mischaracterisation of their stance, minimisation of their complaints, and poor decision making. Their insights into the deficiencies of Island Lodge could support a finding that they have good insight into the deficiencies of LA care.
  98. However, I agree with the professionals and with Dr Sinclair that they have an overly optimistic view of what life would be like were Y to return to their care. They lack insight into the true impact this would have on their family. It is easy to see why and how, in circumstances where they have reason to be so mistrustful of professionals and have been very worried about their son, they should be driven to the conclusion that nothing will be better for him than coming home. Nevertheless, their answers on how they would cope simply do not reflect the likely reality of caring for Y full-time. They have either forgotten or chosen to ignore just how difficult things were for them before Y was accommodated in December 2015. I accept their evidence that specific examples of Y's challenging behaviour might not have occurred in precisely the way alleged by the LA but when they gave oral evidence about these episodes now, I do find they were minimising the difficulties they encountered caring for him. As I have said whilst this is understandable, the romanticised view they portrayed of family life is unrealistic, given Y's level of needs.
  99. M has been observed to be passive in the face of Y's challenging behaviour. She very much leaves him to the father to manage. I accept Dr Sinclair's opinion "has struggled in the past to manage Y's behaviours and there is no available evidence to demonstrate this has changed" E60.
  100. Dr Sinclair opines "the evidence (including Y's history of challenging behaviour) demonstrates that the risk of continued and/or future behaviours that challenge caregivers would continue to be high for Y." I accept that evidence. Dr Sinclair cited research (E59) which supported an analysis that behaviour problems in a child with autism and parental stress (associated with parenting a child with autism and challenging behaviour) exacerbated each other over time. In addition the absence of language combined with behavioural difficulties in the child is likely to lead to increases in parental stress levels. The evidence supporting this analysis in relation to Y's is provided by the chronology in the pre-2015 period when the family was under considerable stress and requested additional help.
  101. Both parents have experienced at least one depressive episode in the past and I accept Dr Sinclair's concern that they "are in good health currently but the stress of resuming the care of Y may impact on their wellbeing and negatively affect their ability to parent all of their children".
  102. I accept Dr Sinclair's evidence that the parents are unable to identify and/or acknowledge the impact on the family of Y returning home. My impression of their evidence was that it betrayed blind optimism on their part about how things would be if he did return home which did not reflect the reality of the situation in which the family had lived prior to December 2015. They minimised the difficulties they encountered in caring for Y and minimised the problems which would likely occur if he returned home. I accept that this can probably best be understood as arising out of their concerns about Island Lodge but they have become so focused on Island Lodge (understandably) that they have lost sight of what would happen if Y were not there.
  103. M is a specialist residential school for autistic children and young people. The facilities are excellent. The parents have now had an opportunity to look around and confirm that the onsite facilities appear appropriate. However, they were not able to get a proper sense of M because they were visiting outside term time. M has come through its Ofsted inspection with glowing colours and is a unit known by Dr Sinclair. It is a unit specifically recommended by Dr Sinclair for consideration of future placements for Y.

  105. When the court decides what is in a child's welfare interests, the court has to take into account all of the circumstances of the case but also, specifically, the factors in the "Welfare Checklist" in section 1(3) Children Act 1989. Turning to those now.
  106. The ascertainable wishes and feelings of the Y in light of his age and understanding

  107. Y is unable to articulate his wishes and feelings but he expresses real pleasure on seeing his parents and some distress when they leave. This could support a finding he would like to return home.
  108. Y is able to communicate in a very basic way through his behaviour when he is happy or sad. It is clear from the evidence of his escalating challenging behaviours that he has been unhappy and sad at times at Island Lodge and that he did not want to remain there.
  109. Y's ascertainable wishes and feelings are to be cared for in a home in which he is well treated.
  110. Y's physical emotional and educational needs and Y's age, sex and any relevant characteristics of the children which the court

  111. Y is rising 17. He is extremely vulnerable because of his disabilities. Y has significant physical, emotional and educational needs. He is a young person who has autism. This is a life-long condition. In addition, he has severe learning disabilities. I accept Dr Sinclair's evidence that he "he will never work or be financially self-sufficient. Y will always be dependent on others to meet his personal and daily living care". These diagnoses increase his vulnerability. For example, Y has been unable to tell people (other than through his challenging behaviour) that he has been at times unhappy at Island Lodge. It is vital, therefore, that he receives not only good nurturing care but that he can be cared for by people who know how to communicate with him and who understand his cues. This is a factor which could point to Y returning home to the care of his parents. Y's parents love him unreservedly and are highly committed to caring for him.
  112. However, the evidence supports a finding that historically, Y's parents were unable to manage his care without the assistance of a package of care described by Dr Sinclair as "akin to corporate care". Even then, he was sufficiently challenging that TS, a specialist autistic provision, had to request his parents to take him home many times because of difficulties in managing his behaviour during the school day.
  113. If Y were to return home, in all likelihood a package of care similar to the type they had received would be the bare minimum required. There is no current educational provision identified for Y if he were to return home but even assuming he could go back to TS (which is unclear), his parents would find themselves in not only a similar situation to the one they were in in 2015 but in one where they faced increased challenges in managing Y because of his increased repertoire of aggressive outbursts. The increased stress this would place upon all family members would lead to tension within the home and maybe even threaten the viability of the placement. This is a factor which points away from a finding that his physical, emotional and educational needs could be met at home.
  114. The parents' style of parenting has been to give in to Y's demands in order to minimise his outbursts. Whilst understandable as a management technique within the home, this approach has not been helpful to Y because it means that he has not learned that he might need to wait for things. This parenting may have contributed to some of his outbursts in other settings such as at school where different strategies are deployed. Such inconsistency in approach is unhelpful for Y. The likelihood of such inconsistencies occurring is higher in a care arrangement requiring input from multiple sources. In my judgment this points away from the parents' suggestion Y should return home.
  115. There is an additional aspect of the care likely to be provided to Y were he to return home which points away from a finding that such a placement would met his emotional needs: the package of support would likely involve the provision of multiple helpers within the home and to assist with transport. As the parents found previously, there was a lack of consistency in personnel with attendance difficulties in managing Y. This is a likely feature of any such future arrangement. This would not be a feature of Y's care if placed at M.
  116. In terms of his educational needs, Island and Ocean Lodge have been a disaster for Y. He has regressed and developed a repertoire of aggressive behaviours. The lack of clarity about the provision available for Y at home points away from an analysis this is a suitable option for Y. By contrast M has an outstanding Ofsted report for the care and provision of education for young people with Y's disabilities. In that environment he would likely receive tailored education which enhanced his abilities and improved his communication. This is a factor which points firmly in favour of M.
  117. The likely effect on Y of any change in his circumstances

  118. Y has already moved out of Island Lodge and away from the harmful care with which he was provided there into a single person placement. This single person placement is unlikely to be able to meet Y's needs long-term. It lacks educational provision and social interaction with his peers and would likely be characterised by the same difficulties which might present in a family setting in which there are multiple agencies providing support in relation to both the consistency and the suitability of carers for Y. The likely effect on Y of moving away from this placement will be short term disruption to his emotional wellbeing.
  119. If Y moved home, such a move would probably be less emotionally disruptive to him in the short term than a move to M. However, in the longer term, I accept Dr Sinclair's opinion that M is more likely to be able to deliver the consistent care Y requires and so in the longer term any additional emotional disruption to Y in moving there is far outweighed by the positive benefits of placement in a specialist residential unit.
  120. How capable each of Y's parents and any other person in relation to whom the court considers the question to be relevant is of meeting his needs and any harm Y has suffered or is likely to suffer

  121. I accept Dr Sinclair's evidence that Y's behaviour has deteriorated in the period he has been accommodated at Island Lodge and that challenging behaviours are now "part of his behavioural repertoire and Y will require intensive and specialist support to reduce his reliance on this maladaptive form of communication. Whilst evidenced based interventions can be delivered in the community with good effect the effect size is not usually as large as that achieved by an experienced team. The anticipated escalation burst would put his parents and siblings at considerable risk of emotional and physical harm. And it is impossible to replicate a care team in the community that can deliver the same number of hours and has comparable experience as a residential/educational facility with staff with expertise in caring and providing education for children with autism, severe learning disability and challenging behaviour."
  122. I accept Dr Sinclair's evidence about the harm Y has suffered whilst placed at Island Lodge. I accept and find that this harm has exacerbated the challenges to any carer looking after Y because aggression is now part of his behavioural repertoire.
  123. Dr Sinclair's opinion chimes with that of Y's Guardian. Whilst she fully accepted that the professionals (including her) were slow to identify the validity of the parents' complaints about Island Lodge, she would be very worried if Y returned to the care of his parents now. She agrees that the parents are "very well intentioned" but considered that "there is a very real risk that if placed at home neither Y's nor his siblings' needs would be consistently met". She was struck by the fact that when she spoke to the parents about Y's behaviour and the risks, they "did not accept that Y could be a risk to them or their children". F planned to leave his job and M said that the younger children were at an age where they are more independent. They told the G that they felt they were able to keep Y calm and happy and they had done this before and they felt equipped to manage any difficulties that might arise although they felt there would be very few difficulties. The Guardian did not agree with this analysis. She concurred with Dr Sinclair's evidence about the likely difficulties which would flow from the community package of supports which the LA had said it could provide. She agreed with Dr Sinclair's description of this as akin to corporate care. She agreed with Dr Sinclair's opinion that "such an arrangement lacks cohesion because there are too many service providers with potentially different and competing ways of working and responding to behaviours that might inadvertently obstruct positive change".
  124. The parents are committed to and devoted to Y's care. Dr Sinclair said that they were "unique in being able to provide a consistent support network that is not subject to workforce changes. Professional carers can never replicate the love, dedication and commitment shown by the parents for their son". I agree. However, I also agree with Dr Sinclair that "Ys needs are complex and he needs more than the good enough parenting his parents on their own are able to provide" and would likely require the "corporate care" he had been receiving before his accommodation in order to make any placement at home viable. I agree with Dr Sinclair that "to return Y to his family a similar or enhanced package of care would be required given the apparent deterioration in his behaviour since he lived at home. Such an arrangement would intrude on family life and may be detrimental to the wellbeing of Y's siblings. An additional downside to replicating previous arrangements is that it lacks cohesion because there are too many service providers with potentially different and competing ways of working and responding to behaviours that might inadvertently obstruct positive change"
  125. I accept the Guardian's and Dr Sinclair's evidence of the likely supports/services which would be required if Y were placed at home E64 and agree with their analysis that even with all of these supports, there are too many risks in at placement at home to make it an option in which the court could have confidence would be in Y's interests.
  126. I agree with Y's Guardian that whilst the parents are devoted to Y, they underestimate the task they face and the evidence does not support a finding that they would be able to provide Y with the care he requires. The parents were not able adequately to manage Y's care historically and conceded he was beyond parental control.
  127. These findings do not in any way undermine the criticisms which the parents have justifiably made of Island Lodge. Were the choice available to me those of Island Lodge or the parents, I would have no hesitation in concluding that placement with the parents would be preferable for Y but this is because the Island Lodge option would be very much worse, even taking into account all of the likely difficulties in placement at home. However, that is not the option the LA now puts forward.
  128. I am pleased that I do not have to determine this application with options limited to those two choices. I am satisfied from the evidence I have heard and read that M offers very much the best option for Y. Although initially he would have to be placed there under a 52 week placement in order to provide the intensive intervention he requires, the school does also operate term-time placements and there would be an option for Y of staying contact including contact at home. I agree that as soon as such a regime can be implemented, it would greatly benefit Y to be able to live at M under the term-time routine, enjoying the benefits of a specialist unit, whilst at the same time being able to enjoy family life at home with his parents and siblings. M is the type of provision which parents have to push to obtain for their child.

  130. Every aspect of the system which should have resulted in positive decision making by professionals for Y appears to have failed. The LA, however it characterises the failings of Island Lodge now, secured a placement for Y which manifestly (and from the outset) failed to meet his needs and keep him safe and then ignored his parents' concerns. It failed adequately to monitor the care which was being provided to Y and exercise the authority it had pursuant to the s20 agreement with any proper care. This has resulted in Y suffering significant harm. Y's Independent Reviewing Officer had no concerns whatsoever (apparently) about his care at Island Lodge. I have not heard from the IRO but given the evidence of Dr Sinclair this is very odd. Y's Guardian did, when appointed, identify serious concerns in relation to Y's wellbeing and did verify a concerning level of restraint of Y but even she accepts she had not worked out that Ocean Lodge was a school for children with Emotional and Behavioural Difficulties. Had she known, she said she would immediately have realised that it was unsuitable for Y. It seems that she too was persuaded by the narrative set out in misleading LA evidence which pointed to an analysis that Island Lodge was doing its best in difficult circumstances (at least on an interim basis). In short, the effect of LA involvement in this case has hindered Y's parents from making decisions about him which could have protected him from harm.
  131. I fully accept that given the appalling way in which they have been treated by some professionals, who have dismissed their concerns about Island Lodge (unjustifiably) and marginalised them from Y's care, that the option of another residential unit is one in which presently the parents probably have very little confidence.
  132. For this reason and in the context of my findings, it would be very much my preference not to grant the LA parental responsibility in this case by making a Care Order. The types of systemic problems which have led to Y being placed inappropriately for 2 years and harmed, could recur if I confer parental responsibility on the LA and make a Care Order, or at least that would be the parents' understandable fear.
  133. However, the situation is difficult. I have no doubt Y needs to be at M. His parents want him home and have minimsed the difficulties they would likely encounter if he returned home.
  134. The parents have said through their counsel that if the court decides upon M, they will abide by the decision and allow Y to be placed there. The LA has agreed to fund Y's placement at M whatever decision the court takes on legal framework. It has committed to fund the placement long term regardless of order. Because of the difficulties which have arisen, it would be my preference for Y to move to M without the LA sharing PR under a Care Order. However, in the short term, there may be difficulties in any transition period. Given the understandable lack of trust on the part of the parents, I fear it might well prove too difficult for them to support and manage Y's transition to a place where they do not want him to live. If there were a day when they arrived at M and he were upset, they might well think that history was repeating itself and take steps to remove Y from M.
  135. Having said that, I see this very much as a short-term problem. Y's parents are reasonable people who have their son's best interests at heart. If Y moves to M and he settles there, as I expect he will and he is seen by them to be thriving there, they will recognise the contrast between the care provided at M to that provided at Island Lodge. I am reasonably confident that in due course they might support his placement there. Were that the case, there would be no need for Y to be in LA care. In the short term, however, and until such a point is reached, PR should be shared if only to ensure that Y remains at M. I emphasise the word shared. The making of an Interim Care Order in this case, does not and should not carry with it any suggestion that the professionals should ignore or dismiss the contribution the parents can and should make to joint decision making about Y.
  136. For all of those reasons I favour a time-limited order the purpose of which is to provide stability to Y in relation to his transition to M and I make an Interim Care Order until the conclusion of the proceedings.
  137. Post Script

  138. After giving a decision, I drew the parties' attention to the case of B (A Local Authority) v RM & Ors [2010] EWHC 3802 (Fam) (15 October 2010) and indicated that given Y's age, the parties should consider whether or not to make an application to the Court of Protection, in which case it would be helpful for such an application to be issued prior to the determination of these proceedings. Such an application has now been issued and has been listed for a first attended hearing alongside the application for a Care Order. Unfortunately, I had to delay the first hearing twice because of difficulties in relation to the funding of the Official Solicitor.


  140. The LA submits that if placed pursuant to its care plan at M, Y will need a level of supervision and control which amounts to a deprivation of liberty which would infringe Y's right under Article 5 ECHR to "liberty and security of person". Y is in the care of the Local Authority and any deprivation of his liberty requires authorisation by the court. AB (A Child: Deprivation of Liberty) [2015] EWHC 3125 (Fam).
  141. In P (by his litigation friend the Official Solicitor) (Appellant) v Cheshire West and Chester Council and another (Respondents); P and Q (by their litigation friend, the Official Solicitor) (Appellants) v Surrey County Council (Respondent) [2014] UKSC 19 ("Cheshire West") liberty it was described by Lord Kerr at paragraph 76 as follows:-
  142. "Liberty means the state or condition of being free from external constraint. It is predominantly an objective state. It does not depend on one's disposition to exploit one's freedom. Nor is it diminished by one's lack of capacity."
  143. The three limbed test set out in the case of Storck v Germany (Application No 61603/00) (2005) 43 EHRR 96, para 71, and 74 ("Storck")[4], clarified that deprivation of liberty under Article 5 has three elements:
  144. i) The objective element of a person's confinement to a certain limited place for a not negligible length of time;
    ii) A lack of valid subjective consent to the confinement in question
    iii) Confinement imputable to the state.
  145. The essential character of a deprivation of liberty involves consideration of Y's circumstances. Lady Hale in Cheshire West:
  146. 37. The second question, therefore, is what is the essential character of a deprivation of liberty? It is common ground that three components can be derived from Storck, paras 74 and 89, confirmed in Stanev, paras 117 and 120, as follows:
    i. the objective component of confinement in a particular restricted place for a not negligible length of time;
    ii. the subjective component of lack of valid consent; and
    iii. the attribution of responsibility to the state. Components (b) and (c) are not in issue here, but component (a) is.
    48. So is there an acid test for the deprivation of liberty in these cases? … So what are the particular features of their "concrete situation" on which we need to focus?

    49. The answer, as it seems to me, lies in those features which have consistently been regarded as "key" in the jurisprudence which started with HL v United Kingdom 40 EHRR 761: that the person concerned "was under continuous supervision and control and was not free to leave" (para 91).

    51. In the case of P, the Court of Appeal should not have set aside the decision of the judge for the reasons they gave. Does it follow that the decision of the judge should be restored? In my view it does. In paragraph 46 of his judgment, he correctly directed himself as to the three components of a deprivation of liberty derived from Storck; he reminded himself that the distinction between a deprivation of and a restriction of liberty is one of degree or intensity rather than nature or substance; and he held that "a key factor is whether the person is, or is not, free to leave. This may be tested by determining whether those treating and managing the patient exercise complete and effective control of the person's care and movements" (para 46(5)). It is true that, in paragraph 48, he summarised the further guidance given by the Court of Appeal in P and Q, including the relevance of an absence of objection and the relative normality of the person's life, which in my view are not relevant factors. But when he considered the circumstances of P's life at the Z house, he remarked (para 58) upon the very great care taken by the local authority and the staff of Z House to ensure that P's life was as normal as possible, but continued (para 59):
    "On the other hand, his life is completely under the control of members of staff at Z House. He cannot go anywhere or do anything without their support and assistance. More specifically, his occasionally aggressive behaviour, and his worrying habit of touching and eating his continence pads, require a range of measures, including at time physical restraint, and, when necessary, the intrusive procedure of inserting fingers into his mouth whilst he is being restrained."
    In my view, in substance the judge was applying the right test, derived from HL v United Kingdom, and his conclusion that "looked at overall, P is being deprived of his liberty" (para 60) should be restored.
  147. No LA can apply to invoke the Inherent Jurisdiction of the High Court and apply for an order depriving a child of liberty unless it satisfies the court that the circumstances are as set out in s100(4)(a) and (b) Children Act 1989, namely:-
  148. a) the result which the applicant sought to achieve could not be effected by the making of any other kind of order to which subsection (5) applies; and
    b) there is reasonable cause to believe that if the court's inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm.
  149. S100(5) of the Children Act applies to any order:
  150. a) made otherwise than in the exercise of the court's inherent jurisdiction; and
    b) which the local authority is entitled to apply for (assuming, in the case of any application which may only be made with leave, that leave is granted).
  151. If that hurdle to jurisdiction is crossed, the court must consider whether or not it is in Y's interests to grant the application. In accordance with the requirements of Article 5 of the ECHR the Court must authorise and review any deprivation of liberty. In particular, the child has a right to be brought before a Court to consider the grounds for detention. Y is not Gillick competent and has not been brought before the court but he has had a chance to see his Guardian. Y has little, if any, understanding of why he is in care and court processes.
  152. Application to this case

    Leave to invoked the Inherent Jurisdiction: are the criteria in s100(4) Children Act 1989 established?

  153. The answer is yes, M is not a secure unit in respect of which Y could be placed under s25 Children Act 1989, nor is it a unit which provides care under the Mental Health Act. A deprivation of Y's liberty at M cannot be authorised without the LA applying for an order pursuant to s100. Any placement of Y at M without authorisation would expose him to significant harm, namely an unlawful deprivation of his liberty.
  154. Is what is proposed for Y accurately described as deprivation of liberty: Are the Storck criteria satisfied?

    The objective component of confinement in a particular restricted place for a not negligible length of time;

  155. The answer is yes. Y will be placed permanently at M where he will be subject to continual supervision and monitoring and he will not be free to leave that residential unit. In particular:-
  156. The subjective component of lack of valid consent;

  157. The answer is yes. Y does not have the capacity nor is he Gillick competent to consent to his deprivation of liberty. He is subject to an interim care order and his parents cannot exercise their parental responsibility in such a way as to provide a valid consent nor can the local authority. Keehan J in Re AB (A Child) (Deprivation of Liberty: Consent) [2015] EWHC 3125 (Fam), [2016] 1 WLR 1160.
  158. The attribution of responsibility to the state.

  159. The answer is yes. Y is placed in the interim care of the local authority.
  160. Is it in Y's welfare interests to authorise any continuing deprivation of his liberty.

  161. Y should move from the single person placement into a permanent placement at M. It is likely that during this transition, those caring for Y will need to deprive Y of his liberty in order to ensure that he remains safe within his placement and to ensure that his aggressive behaviour is managed. However, Y is not living at M yet. I am mindful of the fact that the deprivations described in paragraph 129 have been implemented by Island Lodge in circumstances where they have had limited understanding of Y's needs and how to communicate with him. Dr Sinclair in particular was troubled by the notion that Y had been subjected to physical restraint. In those circumstances it appears undesirable to make any declaration authorising the deprivation of Y's liberty on anything other than a short-term basis to ensure that the transition from single person placement to M is managed appropriately for Y. It will be for the staff at M to assess Y when he is in placement and to identify the terms of any continuing deprivation of liberty. For that reason, I do not consider it appropriate to make anything other than an order for a short period of time to last during the transition and afterward he has been placed for a short period of time.
  162. I propose to make an order permitting the LA to deprive Y of his liberty and to review those arrangements at the final hearing of the application for a care order on 3rd August. This period of transition will provide information about the success of Y's move to M and enable further assessment of the terms upon which Y's placement should be authorised.

  164. All parties agree that this anonymised version of the judgment should be published on Bailii subject to the prohibition on the title page.
  165. It is important to record that Island Lodge has been provided with a copy of the judgment and given an opportunity to object to its publication. It has not done so. It has written to the LA indicating that whilst it does not agree with some of the findings, it does not object to publication of the judgment on Bailii.

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