Judge allows local authority to withdraw care proceedings, says Human Rights Act claim made by parents must fall away
A High Court judge has allowed a local authority to withdraw care proceedings for a teenage boy with multi-system problems, despite the objections of his parents whose Human Rights Act claim fell away as a result.
The application in Lancashire County Council v M & Ors [2022] EWHC 2900 (Fam) was made by Lancashire County Council, who sought permission to withdraw care proceedings in relation to the child (“W”).
The application was supported by the boy’s Guardian and each of the parties in the case, save for his parents. NHS Lancashire and South Cumbria Integrated Care Board (ICB) assisted the court as an Intervener.
Mr Justice Hayden concluded that the boy “does not require to be subject to public law intervention nor should he be”.
The background to the case was that the boy ("W") requires one-to-one care at all times. He has been known to self-harm and occasionally to hold his breath until he loses consciousness.
The plan for W is that he should live at home. His parents share parental responsibility for him with Lancashire County Council, under the aegis of an interim care order, first made by HHJ Burrows on 11th March 2021 and subsequently renewed.
The basis for the local authority's intervention in W's life, was summarised in the case summary prepared on its behalf, for the hearing before HHJ Burrows on 5th July 2021. It was contended that the parents had been "mistrustful of and combative towards the staff appointed by [the care company]".
Relations between the staff looking after the boy and his parents had become very strained, and the private care agency indicated it would no longer be able to offer its services due to the parents’ alleged combative behaviour.
At a subsequent interim hearing, W (A Child), Re [2021] EWHC 2844 (Fam), Mr Justice Hayden credited a psychological assessment "almost entirely" for helping repair the “deeply polarised relationship” between care workers and the parents of the boy.
The judge had approved the instruction of a consultant chartered psychologist and psychotherapist, Dr Kate Hellin, to provide a psychological assessment of both parents, in the hope of achieving a better understanding of some of their interactions with the professionals.
Dr Hellin did not consider that either parent had any sign of mood-related problems, personality order, or serious mental illness in her assessment.
The conclusions drawn by Dr Hellin included: “Rather than looking to change the parents, I recommend a systemic intervention drawn from organisational psychology, psychodynamic psychotherapy, group analysis and systems theory.
“The intervention would assist all agencies and the parents to understand the dynamic processes that have led to the current difficulties, to step back from mutual blame and recrimination, to establish working practices which will contain and diminish sensitivities and optimise collaboration between the different parts of the system.”
Since Dr Hellin’s assessment, the 'systemic intervention' meetings had commenced and were said to be “proving to be constructive”.
Mr Justice Hayden noted that the social worker and the parents meet together and on equal terms facilitated by a 'supervisor'. “Intrinsic to this, is a recognition that the relationship in the past had failed, due to the stresses and pressures on both sides and, it requires to be said, failings on both sides.”
Adding: “Thus, it is recognised that the basis for the Local Authority's intervention [as set out before HHH Burrows] is misconceived.”
Lancashire County Council subsequently sought permission to withdraw the care proceedings.
Mr Justice Hayden noted the test to be applied, summarised by Cobb J in J, A, M and X (children) [2013] EWHC 4648 (Fam), was whether the local authority's inability to satisfy the threshold criteria was "obvious".
Where the Court considers that the threshold criteria are met, it may however evaluate whether withdrawal of the proceedings is in the “best interests of the child.”
Counsel for the child’s father invited the Court to refuse any application by the local authority to withdraw the care proceedings.
The parents had previously submitted a claim pursuant to Section 7(1)(b) of the Human Rights Act 1998. Section 7(1)(b) Human Rights Act 1998 states:
"7 Proceedings.
(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may—
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act."
Mr Justice Hayden said: “The essence of the claim is that both the Local Authority and the ICB propose to act in a way which is incompatible with Article 8 [rights to family life], by implementing a care package in which the burden placed on the parents generates a situation in which W's safety is compromised.
“The remedy sought by the parents does not seek damages but is entirely limited to declaration. The claim is brought within the Children Act proceedings to reinforce the fundamental importance of a sufficiently resourced care plan, in which the family is appropriately supported.”
Counsel for the father asserted that the local authority had collated evidence, now seven months ago, seeking a final care order. That evidence, she suggested, had not evaporated. She suggested that it had now become inconvenient for the local authority. If these proceedings fell away, so too, inevitably, did the HRA claim. That, said counsel for the father, was the reason the local authority now sought permission to withdraw. It was, she suggested, pure "expediency".
Mr Justice Hayden said this charge was reflected back by counsel for the local authority, who contended that the parents' team were seeking to preserve the proceedings, exclusively to keep pressure on the local authority and the ICB, to construct a care plan, which found favour with the parents but went beyond that which was reasonable, having regard to the available resources, by no means confined to financial.
Counsel for the ICB meanwhile went further and submitted that the parents' strategy had become a device to encourage the Family Court “to drift away from its statutory moorings and become lured into 'dictating' how independent agencies exercise their powers. It crosses the line, [Counsel for the ICB] suggests, between the recognised responsibility of the Court to 'persuade' Local Authorities to allocate resources to the care plan of a particular child where it considers that to be in the child's best interests and enters territory where the Court is being harnessed to apply 'pressure' which is entirely beyond its remit.”
In the course of the hearing, the judge heard from the boy’s mother (M), and from the social worker.
Mr Justice Hayden noted: “The structures around W are framed in the language of medicine and social care. Shifts are allocated and divided, in response to W's needs. When M talks about taking on 'shifts', she is, in my judgement, applying the lexicon which surrounds her son into which she has inevitably migrated. [The social worker] has, at least to some degree, overstated the significance of this, in my judgement.”
He added: “This mother may talk about "work" and "shifts", but her dedication to W is manifest and abundant.
“[…] Applying this evidential matrix to the applicable legal framework requires me to ask the initial question as to whether the threshold criteria is met on the available evidence.
“The starting point, requires me to consider whether it is 'obvious', per Cobb J, that they are not met. [Counsel for the child’s father] is charged on this point with being hoisted by her own petard. In a joint written submission for an earlier hearing, in April of this year, the parents' team stated the following:
"We submit that this case falls into the first category and that it is safe for this court to conclude that it is obvious that the local authority cannot establish the threshold criteria. The key to that conclusion is in the attributability condition, as your lordship foreshadowed in your judgement of October 2021."
The judge said: “That is not merely inconvenient for the parent's argument, if maintained, it must lead it to wilt and wither away. [Counsel for the father] has, with considerable forensic dexterity, tried to retreat from the apparent absolutism of the concession in order to negotiate herself into the Court's discretionary territory. Even so, it remains her case that the threshold criteria are not met but should nonetheless be regarded as requiring to be put to forensic assay. She is essentially seeking a hook upon which to hang the HRA application in the hope that will achieve a stronger and better supported care plan.”
Mr Justice Hayden noted that Dr Hellin did not attribute 'blame' to the parents. She analysed harm, or the likelihood of it, as generated by the "high stakes, high pressure, dynamic context" in which the parents and the professionals were "trying to do their best".
“As is clear from the earlier judgment, I found that analysis to be compelling, tightly reasoned, and insightful. Every person involved in this case agrees with it. In those circumstances, it strikes me as axiomatic or to put it another way, "obvious", that the threshold criteria are not met. Thus, the proceedings and the HRA claim fall away,” he concluded.
The judge said it was important to note, that he had arrived at this conclusion not on the basis of the expert opinion but on his wider analysis of the evidential canvas. “In particular, as I have stressed above, the evidence of the mother and the key social worker is integral to the wider evidence.”
He added: “Care orders impose checks, reviews, visits, and assessments which are an intrusion into the child's life as well and must be justified by the evidence. Here, they are not. W has the great fortune, not vouched safe to all children, of a secure, loving home. He does not require to be subject to public law intervention nor should he be.”
Mr Justice Hayden said that in the past, as Dr Hellin pointed out, the legal process had been a positive advantage to both parents and professionals.
“Now that the systemic intervention has commenced, the pendulum has swung, and litigation is more likely to prove an obstacle to progress. As the family courts often hear, constructive therapeutic intervention is far harder to achieve in the context of ongoing litigation. Much has been accomplished here and the obligation on all involved is to ensure that is built upon for the future. The extent of the care required must be focused on the needs of these particular parents and evaluated against the background of the case if it is to meet the needs of W.”
Lottie Winson
