A Family Court judge has made a care order for two children described as "severely overweight" to be taken into long-term foster care, following an application by West Sussex County Council.
In West Sussex County Council v A and B  EWFC B62, a judgment which was handed down on 29 October 2020 but only published on Bailii last week, District Judge Gillian Ellis said: "Everyone agrees that this is a very sad and unusual case, of a loving family, where the parents meet many of the basic needs of the children, but the local authority has been concerned that the parents are not meeting the children’s health needs, in that both children are severely overweight, and the parents have shown an inability to help the children manage this condition."
The Guardian supported West Sussex's position but both parents opposed it.
Concerns about the two children, who are 16 and 13 years old, were initially raised more than ten years ago in 2010 when West Sussex was made aware of their weight, poor hygiene and poor home conditions. Numerous interventions had been made since then, but the children continued to gain weight.
The final hearing took place over three days in October 2020.
The children's social worker said that their weight was the primary reason for applying for the care order, but the children had also suffered neglect through poor home conditions and lack of guidance on their personal care.
The children's personal presentation was poor, according to the social worker, who said they had dirty nails. One child had tangled hair while there was concern with the other about body odour. Every effort had been made by the council to encourage regular washing and teeth-brushing but to no avail.
This resulted in them being bullied at school and in having low self-esteem.
The council tried to assist the family in tackling these issues, including the provision of Fitbits (to monitor their activity levels) and gym memberships, but the children failed to engage consistently in exercise despite the authority's efforts, the court heard.
Upon hearing the evidence from the social worker, who was described as a "compelling witness", Judge Ellis said that she accepted "that there are no other measures which can be taken by the local authority to assist this family".
A, the mother, with whom the children had remained when the parents separated shortly after the proceedings were issued, said she could not explain why the children were not losing weight as they were sticking to the healthy eating and exercise plans.
Judge Ellis acknowledged that A "presented as a loving mother, who clearly has a good relationship with her children". The judge said she had been "in many ways" a good mother. However, she said A had failed to instil in the children habits of healthy eating, exercise, and good self-care.
"I accept what she says about the difficulty of compelling teenagers to act in a certain way but, clearly, had these habits been encouraged and modelled to the children from an early age, no element of compulsion would now arise," the judge said.
Judge Ellis said she believed that A had tried to comply with the written agreements in this case but that the issues had simply proved too hard for her. "It cannot be the case that she and the children have been adhering to the healthy eating and lifestyle plans discussed because, had they done so, when there is no evidence of any medical condition, it is undoubtedly the case that the children would have lost weight."
Turning to the order to be made in the case, Judge Ellis said the advantages of [the children] remaining in their family home were "many and obvious". She described the family as "loving" and "close-knit". Even though the parents had separated, they maintained good relations and the children were close to both parents. If they remained in their parents' care , they would remain in the environment in which they had grown up, and with the people they loved.
However, the judge noted that if they remained in their parents' care, their health needs would continue to be neglected and they would continue to put on weight, and suffer the long-term and serious health consequences that she had identified.
On the impact of removal to foster care on the children, Judge Ellis recognised the potential struggle of settling in a new environment and suffering the loss of day-day contact with their parents. She also noted the potential loss of contact between C and D, since C's 17th birthday was in a week, and as such, he could elect to not go into foster care.
Despite this, she said: "Having reviewed the factors in the Welfare Checklist, and having considered the balance of harm test, I am satisfied that it is in the children's welfare interests for these orders to be made, that these children need the chance to learn ways of living more healthily, and to improve their health by losing weight.
"I am aware that this is a serious, life-changing order, and one with which many people may disagree, taking the view that issues of obesity are matters of choice and lifestyle, with which it is inappropriate for the state to interfere. I have therefore asked myself whether this order, which I consider is in the children's welfare interests, is one which is necessary and proportionate to the risks in this case. That is obviously a question which has particular relevance in relation to C in view of his age. However, having specifically addressed my mind to this issue, I am satisfied that this order is both necessary and proportionate for both children, in view of the serious and lifelong risks posed to their physical and mental health if nothing is done to change their lifestyle.
Judge Ellis confirmed that she was satisfied that it was proportionate to make an order in relation to C. "He may choose not to comply with it but I do think it is of benefit for him to know that a judge, having reviewed all the evidence, is so concerned about his situation that she has thought it necessary to make an order."
She added: "I am aware that this order is an interference with the Article 8 rights of these family members but, for the reasons I have set out, I am satisfied that it is necessary and proportionate, and that these are the least intrusive measures which can be taken to promote the children's stability, security, and welfare. I therefore make the care order sought by the Local Authority and approve the care plans, and I do also approve the plans in relation to contact.
"I will say to B and A, as has been said many times, that contact is kept under continual review but what is being proposed is just the initial arrangement, which is being done for the assistance of everyone, to ensure that support is in place, to make sure that emotions are regulated, the placement supported, and that there are no issues with food, and I do consider that that support is necessary to keep the contact on track. Obviously, if C does decide not to remain in placement then arrangements will have to be made for the sibling contact, and I am confident the Local Authority will take that on board."