Keywords: Children; Care proceedings; Parental Control; Deprivation of Liberty and parental consent; Consent to medication
This case concerned T, a child aged 13 years with Autism and Severe Learning Disability.
T had, until recently, lived with his mother (M) (with some support and respite care provided by the local authority) and attended a special school. T’s behaviour was particularly challenging and included destroying property, throwing items from windowsm smearing excrement, removing clothing and self-injury (head banging and hair pulling).
T was described as:
“[having] a particular skill in deconstructing almost anything in his environment and steps taken to fortify his living spaces have usually been unsuccessful in reducing T’s ability to dismantle almost anything that is left within his reach.” [para. 19]
An interim care order had been granted on the grounds that T was ‘beyond parental control’ and, by the time of this hearing, T was living at a specialist residential unit (X unit). All parties were agreed that the circumstances of T’s care in the specialist residential unit amounted to a deprivation of his liberty.
The local authority sought a full care order and an order under the inherent jurisdiction authorising the deprivation of T’s liberty at X unit.
T’s mother, M, opposed the issuing of a full care order, disputing that T was ‘beyond parental control’, and sought to care for him at home with a package of support from the local authority. Also at issue was whether medication (Risperidone and Melatonin) should be administered to T, despite M’s objection, and, if so, whether the local authority could consent to that medication on T’s behalf or whether a court order was required.
Beyond parental control
The key issues were:
- Whether the threshold criteria for a care order were satisfied either on the basis that T was beyond parental control or due to him suffering or being likely to suffer significant harm attributable to the care he was likely to receive from M, that care not being what it would be reasonable to expect a parent to give?
- What impact, if any, T’s own disability had on whether the court can find him beyond parental control on the basis that it was unlikely that any carer could meet his needs in a home environment?
Although much of the detail of T’s care over the previous few years was disputed between the parties, Mr. Recorder Howe (QC) concluded that the local authority had tried to provide an adequate package of care at home.
However, M had struggled with some elements of the package, finding professionals visiting her home intrusive and failing to follow their advice, believing that she knew best. Ultimately, whilst emphasising that M had shown considerable commitment to T’s care and that his needs were likely beyond those which would be manageable by any parent in a home environment, Mr. Recorder Howe (QC) concluded that T’s care had become too much for M to manage and that T had suffered and was likely to suffer significant harm. M had failed to sufficiently supervise T at home, manage his behaviour and to meet his needs.
Following a careful review of previous (contradictory) cases which had dealt with the definition of ‘beyond parental control’ (section 31(2)(b)(ii) Children Act 1989), Mr. Recorder Howe (QC) took the view that it was immaterial whether responsibility for the child being beyond parental control lay with some failing of the parent or with the child’s disability. In other words, a child could be beyond parental control because, due to a disability or medical condition, the child’s behaviour was such that no parent would be able to exercise sufficient control to protect them from suffering significant harm. He reasoned that to construe ‘beyond parental control’ as requiring a finding of fault in the parent would require local authorities to undertake an unhelpful fault-finding exercise and leave unprotected a group of children whose own disabilities caused them to be beyond the control of anyparent, concluding that:
“the State needs to have the ability to intervene and protect such children from the harm they cause to themselves if they do not respond, or are unable to respond, to the attempts of their parents or carers to protect them.” [para. 89]
Consequently, a broad ‘no fault’ interpretation gave best effect to the purposes of the legislation.
The care plan
- If the threshold was satisfied, whether the local authority’s care plan was a necessary and proportionate response to the risk to which T would be exposed if returned to the care of M or, when comparing all advantages and disadvantages of the realistic options, should M’s plan be preferred?
Evidence was heard that, since moving to X unit, T’s behaviour had deteriorated rather than improved.
Mr. Recorder Howe (QC) was critical of X unit’s continuing failure to enable T to spend any time outside of the unit (other than in a car), even in a remote outdoor location, and found M’s complaints that X unit were not promoting T’s ability to interact with the outside world were justified.
Evidence also indicated that, contrary to the impression given by X unit of constant supervision, T was in fact being left unsupervised for periods in excess of an hour, with serious consequences including T removing most of his toenails over a 4-day period and medical attention and pain relief failing to be provided until days later. It also became apparent that staff at X unit had lied to T when he had asked about when he would be seeing M.
However, T’s social worker gave assurances to the court that she would ensure that these failings were addressed and all professionals agreed that T’s needs could only be met in specialist residential care.
Crucially, whilst largely sharing M’s concerns about the care T had received at X unit, the Children’s Guardian supported the making of a care order, concluding that it was not feasible to expect that M could provide adequate care for T in the community, given that she had no friends or family to help and would require extensive professional support, which would require M to work openly and honestly with professionals (which her past behaviour indicated would not happen).
Mr. Recorder Howe (QC) concluded:
“There being no other realistic options before the court, and having treated T’s welfare as my paramount consideration and considered all the matters set out in the welfare checklist, I am entirely satisfied that making a care order is a proportionate interference with the article 8 rights of T and of M, it being the only order that I can make that will protect T from suffering further harm.” [para.127]
Deprivation of Liberty
- Whether a declaration authorising the local authority to deprive T of his liberty was required and what steps should be taken to promote T having some less restricted time within and outside if the unit?
Referring to the decision In re AB (A Child) (Deprivation of Liberty: Consent)  EWHC 3125 (Fam),  1 WLR 1160. (which was unaffected by In re D ), it was clear that, where a care order is in place, a local authority cannot consent to the deprivation of a child’s liberty and, therefore, that a court order is required. Therefore, Mr. Recorder Howe (QC) granted a permissive order under the inherent jurisdiction authorising the deprivation of T’s liberty to the extent necessary to protect him from significant harm.
Mr. Recorder Howe (QC) declined to make a series of declarations of T’s best interests, requested by M. However, he expressed clear confidence that T’s social worker would ensure that T’s care plan called for regular trips outside the unit (including time outdoors) and that M should be permitted to accompany T on such trips.
- If a care order were made, whether the proposed administrations of risperidone and/or melatonin were of such gravity that the local authority could not consent to such administration, given M’s active opposition? If so, should the court grant a declaration, pursuant to the Inherent Jurisdiction of the High Court, authorising the local authority to administer the medications?
The power of a local authority under a care order to make decisions about a child in the exercise of its shared parental responsibility with the child’s parent(s), includes what has been described as a ‘trump card’. Section 33(3) Children Act 1989 empowers the local authority to effectively overrule the parent of a child subject to a care order in major decisions in that child’s life. This power is explicitly limited in specific circumstances set out elsewhere in s.33, such as causing the child to be known by a new surname. However, the courts have expanded these limitations on the basis that in some instances:
“the seriousness of the interference with the Article 8 rights of the mother consequent upon the local authority exercising that power, demands that the course of action it proposes be brought before and approved by the court” (King LJ in C (Children) EWCA Civ 374).
Previous examples had included overruling the mother’s choice of forenames and consent to vaccination.
In this case, Mr. Recorder Howe (QC) concluded:
“Having considered in some detail the authorities referred to above, this local authority does, in my judgment, require the authorisation of the court for Risperidone and Melatonin to be administered to T.
I find this for 3 main reasons:
(a) each drug, whilst commonly used with autistic children, has recognized and serious side effects;
(b) T’s impairments are such that I am satisfied that he would have more difficulty in expressing that he was suffering side effects, were they to arise;
(c) If the administration of vaccinations and the change of a child’s first name are such serious interferences with the article 8 rights of a parent, so as to require an order under the inherent jurisdiction of the High Court to override the will of a parent, however unreasonable that parent may appear to be, it would be a nonsense for the reasonable concerns of this mother not to be of sufficient gravity to justify similar protections.” [para. 180]
It is difficult to see what option was open to the judge in this case other than the making of a care order. However, the local authority’s apparent continued reliance on X unit in the face of evidence of, at best, some questions about the standard of care provided to T is deeply concerning (although, sadly, hardly unusual).
The most important and, perhaps, surprising element of this case is the ruling regarding medication.
If this reasoning were to be extended to best interests’ decision making on behalf of an adult who lacks capacity to consent to medication, then care providers, health professionals and local authorities would be wise to consider applications to the Court of Protection for a best interests’ declaration where any best interests consultee (including family members) disagrees with the prescription of similar medications. Such cases could be potentially numerous given the frequency with which similar medications (particularly atypical antipsychotic medications) are prescribed to incapacitous adults with conditions such as Autism, Learning Disabilities and Dementia. It remains to be seen therefore whether the distinction between best interests consultees and those with any greater power or responsibility for an adult, such as an attorney, deputy, guardian, etc, even if not a welfare power, is a justification for treating decision-makers as no longer free to go ahead and implement their decisions without judicial authorisation – or whether it should just be left to those challenging decisions to bring their own proceedings in the CoP as applicants.
Full text at: http://www.bailii.org/ew/cases/EWFC/OJ/2018/B1.html