North Somerset Council v LW and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Keehan |
| Judgment Date | 21 May 2014 |
| Neutral Citation | [2014] EWHC 1670 (Fam) |
| Date | 21 May 2014 |
| Court | Family Division |
| Docket Number | Case No: BS14C00314 |
[2014] EWHC 1670 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Keehan
Case No: BS14C00314
Claire Wills-Goldingham QC (instructed by North Somerset Council) for the Local Authority
Louise Price (instructed by the Official Solicitor) for the Mother
Grainne Mellon (instructed by Powells Solicitors) for the putative Father
Hannah Wiltshire (instructed by Caseys Solicitors) for the Children's Guardian
Hearing dates: 15 th April 2014 and 6 th May 2014
Introduction
The matter concerns a very young baby, EW, who was born on 1 May 2014. Her mother is LW and her father is said to be TC. His paternity is to be determined by DNA testing.
On 11 April 2014 the local authority applied for an order under the inherent jurisdiction of the High Court that it be permitted not to disclose to the mother the care plan to remove her unborn child at birth. At a hearing on 15 April I granted that application and the local authority's application for a reporting restrictions order ('RRO'). Both applications were heard and determined in open court.
On 1 May 2014, within hours of EW's birth, an application for an emergency protection order was heard and granted by HHJ Wildblood sitting in the Family Court at Bristol as a judge of High Court level.
Mother and child were placed in separate wards at the hospital in Bristol. Mother had supervised contact with EW supported by her mother and grandmother.
LW was discharged from hospital on 2 May. Very sadly her mental health has deteriorated in the community and the Crisis team of the local mental health trust has been called upon to treat and support her. The mother is diagnosed with a condition known as hebephrenic schizophrenia. It has had and has a very serious adverse impact on her daily life.
On 6 May EW was discharged from hospital into the care of foster carers. It is a concurrent planning placement. The guardian has met EW and the foster carers. She is extremely pleased with the quality of care afforded by the foster carers.
I heard the local authority's application for an interim care order on 6 May 2014. I also considered whether the RRO should continue or whether it should be varied or discharged.
At the hearing before HHJ Wildblood he gave case management directions including an invitation for the Official Solicitor to consent to act as the mother's litigation friend. He directed a representative of the Official Solicitor to attend the hearing before me on 6 May.
At that hearing counsel and solicitors attended to represent the mother. They had not met the mother and, given she had been assessed in February 2014 by her treating consultant psychologist as lacking the capacity to litigate, they could not act without the benefit of a litigation friend. There was no representative from the Official Solicitor's office present at court. The local authority's solicitor kindly made contact with the Official Solicitor's office. In consequence, Ms Clift attended the hearing at very short notice. I am very grateful to her for doing so.
The Official Solicitor is a litigation friend of last resort. The local authority had undertaken an assessment of LW's mother as a possible carer of EW: the assessment was negative. It is not known whether LW's grandmother might put herself forward as a possible carer.
For those reasons and given the close and practical support both women provide to LW, I considered it inappropriate for either of them to act as her litigation friend. That is no adverse reflection on them; it is a result of the real potential for a conflict of interest to arise. In those circumstances and in the absence of any other suitable candidate, the Official Solicitor consented to act as LW's litigation friend and was so appointed.
The guardian supported the local authority's application for an interim care order. The Official Solicitor and the putative father neither consented to nor opposed the application.
Background
The mother, who is 24 years old, endured a difficult and disruptive childhood. In her mid to late teenage years she was diagnosed with a condition known as hebephrenic schizophrenia with predominant features of disorganised and incoherent thought processes. She is prescribed medication to control the symptoms of the condition and is regularly seen by her treating consultant psychiatrist and/or members of the mental health team. Her compliance with taking her prescribed medication and her co-operation with mental health professionals is very variable.
In 2010 a psychologist assessed the mother's global IQ as 63 which falls in the range of mild to moderate learning difficulties.
In August 2007 and again between December 2008 and September 2009 the mother was detained under the Mental Health Act 1984. Since then she has lived in the community but there have been many periods when she has disengaged from mental health services.
When it was discovered the mother was pregnant she was again referred for mental health support. A referral was made to the local authority in December 2013. Thereafter six multi agency professional's meetings have been held.
In February 2014 Dr G, the mother's treating consultant psychiatrist, reported that the mother was likely to pose a significant risk of harm to her unborn baby, herself and professionals if she were to be informed of the local authority's plan to seek to remove the child at birth. She further reported that the mother's 'mental health deteriorated gradually during the pregnancy' and that given she was pregnant her prescribed medication had had to be reduced to a relatively low level.
The mother attended for an antenatal scan on 9 April when she presented with paranoid and hallucinatory thoughts. She made threats to leave the clinic and was racially abusive. The social worker considered that the mother had no awareness of the concerns for or the needs of her as yet unborn baby. She was of the view that the mother is highly resistant to professional advice and has a tendency to violence.
There was a real concern held by the social work and health care professionals that the mother would not be aware when she was going into labour and might not understand what was happening when she did so. A further complicating factor was that the foetus was in the breech position and unless it could be turned by the elective cervical inversion ('ECV'), it was most likely the baby would have to be delivered by caesarean section ('CS').
In light of the mother's mental health condition and her volatile behaviour the local authority formulated a care plan for removal of the child at birth and made the application under the inherent jurisdiction.
On 11 April the application for an order under the inherent jurisdiction came before Baker J for directions. The issue was raised as to whether the mother had capacity to consent to medical treatment, in particular an ECV and/or a CS. Further the issue was raised whether orders should be sought in the Court of Protection to permit the relevant trust to perform an ECV and/or a CS if the mother was assessed as lacking capacity to consent to either procedure and/or other medical treatment.
Accordingly Baker J directed the University Hospital Bristol NHS Foundation Trust ('UHBT') should attend the hearing before me on 15 April. At the commencement of that hearing no representative from UHBT was present at court despite it having been served with and/or given notice of the direction made by Baker J. I was shown a letter dated 14 April written by the trust's solicitor which indicated:
a) it was for the trust and not for the local authority to make any applications to the Court of Protection;
b) the mother was to undergo a capacity assessment to consent to medical treatment on 17 April; and
c) the trust did not intend to appear at or be represented at the hearing before me.
I considered that to be a wholly unsatisfactory state of affairs. When my views were made known in a telephone call to the trusts' legal department they instructed counsel, Ms Hallissey, who appeared before me later that day.
The hearing of the Court of Protection and its outcome is the subject of a separate judgment namely NSC v LW, UHBT, NBT and AWP [2014] EWCOP 3. Suffice to say that ultimately the mother was found to have capacity to consent to medical treatment including a CS. Therefore no order was made.
EW was born by CS under epidural anaesthesia. Following the birth the mother was unable to make decisions in the best interests of the child. When advised the baby required an injection of Vitamin K the mother refused and asked 'Am I going to die'. After the making of the emergency protection order the local authority consented to the treatment.
Sadly, as mentioned earlier, the mother's mental health has deteriorated since her discharge from hospital. It has been necessary for the mental health crisis team to attend on her.
Very little is known about the putative father, TC. Until the hearing before me on 6 May, he had not cooperated with the local authority. Late last week he instructed solicitors who instructed counsel to appear at that hearing. Through no fault of theirs they had few if any instructions.
Application under the Inherent Jurisdiction
At the hearing on...
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DM
...decisions, which it is contended appear in some way to lower the bar for this radical intervention. These decisions include North Somerset Council v LW, TC & EW [2014] EWHC 1670; NHS Trust 1 & NHS Trust 2 v FG [2014] EWCOP 30 and X County Council v M, F & C [2014] EWHC 2262 (Fam). 28 In NHS......
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NHS Trust 1 and Another v FG (by her litigation friend, the Official Solicitor)
...on the guidance I should give by the Official Solicitor and the local authority in the case of North Somerset Council v LW and othrs [2014] EWHC 1670 (Fam). 75 Counsel for the Trusts advised me that NHS England and the Department of Health should be notified of the invitation to give guidan......