Dorset Council v AB
| Jurisdiction | England & Wales |
| Judge | Dancey |
| Judgment Date | 05 February 2020 |
| Neutral Citation | [2020] EWHC 1098 (Fam) |
| Date | 05 February 2020 |
| Docket Number | Case No: G00BH310 |
| Court | Family Division |
[2020] EWHC 1098 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION SITTING AT BOURNEMOUTH
IN THE FAMILY COURT SITTING AT BOURNEMOUTH
Case No: BH20C00387
In the matter of the Inherent Jurisdiction of the High Court
and the Children Act 1989
Courts of Justice
Deansleigh Road
Bournemouth
BH7 7DS
HIS HONOUR JUDGE Dancey
Sitting as a Deputy Judge of the High Court in the DOls application and as a section 9 Judge in the family court in the care and secure accommodation proceedings
Case No: G00BH310
and
and
Roberta Holland (instructed by Dorset Council Legal Services) for the Applicant
Jodi Street on 1/5/20, David Beatson on 4/5/20 for the 1 st Respondent
Emily Davies on 1/5/20, Gareth Bishop on 4/5/20 for the 2 nd Respondent
Nigel Hawkins (instructed by the children's guardian) for the 3 rd Respondent
Hearing dates: 1 and 4 May 2020
(Conducted remotely by Skype for Business)
Introduction
) This case concerns E, an extremely vulnerable young man aged 16. On 24 April2020 DorsetCouncil applied under the inherent jurisdiction for authorisation of deprivation of liberty in respect of E. Dorset also applied to the family court for an interim care order in respect of him on the ground that he is beyond parental control. The applications were issued on 28 April and, Roberts J having on that date allocated the DOLs application to me to hear, I listed both applications for hearing on Friday 1 May.
) At that hearing it was apparent that everybody had grave concerns about E's risk-taking behaviour to the point that all agreed (E's parents, AB and CD, included) that he needed a secure placement. He was at that point in an unregulated placement in Southampton which was unable to manage him. The children's guardian said in her position statement, “ It is by no means an exaggeration to say that [E] has and remains very much at risk of killing himself, being killed or coming to serious harm”. Nobody disagreed with that assessment of the situation.
) Dorset's position was that as, when they made a referral on 30 April 2020 for a secure accommodation welfare bed, there were 46 live referrals for secure accommodation placements, there was no point in applying for a secure accommodation order. I was told that Dorset had made a referral and would, if needed, use the 72-hour provision under section 25(2)(a) of the Children Act 1989 and apply at that point.
) I could not see the logic in that position and said so. It seemed to me that if the test for the making of a secure accommodation order was made out and it was common ground that E required a secure placement, then Dorset should make an application for a secure accommodation order. I was concerned that the social work evidence and interim care plan filed with the applications referred only to placement in an unregulated placement while Dorset sought a more suitable long term residential placement for E, which seemed to be at odds with their acceptance that E needed a secure placement. The case summary filed on behalf of Dorset referred to the need for a secure placement, but that was not the evidence, nor their application at that stage.
) Dorset agreed to make an application for secure accommodation which I agreed to hear at 10am on Monday 4 May, abridging time for service. In the meantime, I made the interim care and DOLs orders sought.
) Dorset issued its secure accommodation application shortly before the hearing on 4 May.
) By the time of the hearing on 4 May there had been further developments. First, there had been further incidents over the weekend, escalating the risks to E. Secondly, an alternative short-term placement had been found for E in a rural setting in East Dorset starting at 12 noon on 4 May. This placement, albeit again unregulated, was thought by all to be safer for E than his current inner-city placement where risks around absconding and drug culture were higher.
) I gave permission to Dorset to amend its existing DOLs application to cover the proposed restrictions at the new placement. I made the secure accommodation and amended DOLs orders sought with the agreement of all parties, save that (a) E had not been prepared to speak to his solicitor, Mr Hawkins, or his guardian, Ms Hambleton-Lord to establish his competence to instruct Mr Hawkins separately or to ascertain his wishes and feelings; (b) while Ms Hambleton-Lord agreed that the new placement was likely to be a better option for E she was, because of Cafcass policy, unable to expressly support DOLs in an unregulated placement.
) Mr Hawkins proposed that a written judgment might add some weight, albeit only fractional, to the prospects of Dorset finding a secure placement for E and so could only benefit E. Over the weekend the list of live referrals for secure placements had increased to 50. Placements are secured based on central assessment of suitability and risk. Mr Hawkins suggested that, as E's risky behaviours have not included the use of weapons, he may well not yet have placed himself above the threshold for acceptability for secure accommodation. There is some hope therefore that, as the risks to E are high but he may be suitable for secure accommodation, a place may be found.
) The second reason I am giving this written judgment is to add to the continuing concern about under-resourcing of secure placements. On 28 April Cobb J gave judgment in not dissimilar circumstances in Re S (Child in care: Unregulated placement) [2020] EWHC 1012 (Fam) concerning the lack of regulated residential placements. As Cobb J did in that case, I intend that this judgment be sent to the Secretary of State for Education, Gavin Williamson MP and to the Children's Commissioner.
E's circumstances
) E and his twin sister were adopted at 13 months. His adoptive parents attended both the hearings by Skype. They are naturally worried about E. Everyone agrees they have done everything they could to support E.
) In his report for CAMHS of 20 April 2020 Dr Kayode Fagbemi, psychiatrist, set out that E has been diagnosed with Attention Deficit Hyperactive Disorder, Autistic Spectrum Disorder and mild intellectual impairment (he has an IQ of 65) all associated with possible Foetal Alcohol Spectrum Disorder after his mother used drugs and alcohol during pregnancy (although there has been no formal diagnosis of FASD). FASD results in mental disability through brain injury rather than mental disorder and requires a rehabilitation model of care. Although he has not had a brain scan to enable a diagnosis of FASD, many of his difficulties match that condition.
) I asked E's parents about his sister, as there was no information about her in the papers. She is doing well, although she is somewhat shy and withdrawn. She was removed into foster care soon after birth, whereas E remained with his mother for some time and they thought that was traumatic for him.
) As Dr Fagbemi reports, since prepubescence E has struggled with significant emotional and behavioural difficulties escalating now he has reached full adolescence. Over the last five years he has been seen by paediatricians, psychologists and psychiatrists. There has been multi-agency involvement including children's services, CAMHS, police, the Youth Offending Team and education to try and contain the risk to E from his behaviours. Identified difficulties include persistent levels of over activity and high energy, impulsive behaviours, impaired decision making, risky behaviours (including running away from home), difficulty identifying and understanding consequences of risky behaviour, poor attention, memory and retention difficulties and deficits in appreciating appropriate social behaviour. E is vulnerable and suggestable. He becomes aggressive either provoked or unprovoked. He engages in criminal behaviours and significant polysubstance misuse. His cognitive strengths include verbal comprehension and processing speed so that he may present to others as a capable young man, masking his significant difficulties.
) Many interventions have been attempted, including medication. Therapies such as CBT and DBT have been considered but, because of his difficulties, E has struggled to engage meaningfully in any form of therapy.
) Exasperated at what they saw as a lack of support, E's parents finally privately funded E living, first at a secure unit in Utah for 6 weeks in August 2019, and then at a ranch academy in Utah for 12 weeks from December 2019 until mid-March 2020. As both these units were secure there were firm and robust boundaries in place and E's risks and vulnerability were well managed. In their report the ranch academy (a locked door residential placement for behaviourally challenged youths) reported “ the way we were able to manage [E] was because we are a very structured environment, he was within eye sight of staff at all times and given constant redirection. We are a locked down facility and he could not leave or go anywhere without a staff member....
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