Re v (Care or Supervision Order)

I will ask Lord Justice Waite to give the leading judgment in this case.

The young man who is the subject of this appeal is very nearly 17 years of age. He was born suffering from cerebral palsy and is severely handicapped. He has been described by a consultant paediatrician as suffering from spastic quadriplegia and learning disabilities. He has increased tone in all his limbs and general difficulty in co-ordination. He also suffers secondarily from flexion deformities at his knees, dislocation of his hips and deformed feet. He has a degree of kyphoscolioses. He can only articulate a few words and he communicates mainly by a mixture of speech and gesture, and through the help of an automated signing system. He is the adopted child of Mr. and Mrs. V (the "mother" and the "father"). They are now in their 50s.

For a number of years their marriage had been childless. When a son was eventually born to them, most tragically, that child died in infancy of a malignant illness which the mother felt the doctors had been far too slow to diagnose. The couple then decided to adopt a baby. In November 1977 they adopted S. He was then four months old, having been born on 5th July 1977.

They were assured that he was a healthy child, but they soon became concerned about his development. After initial medical assurances that he was a normal baby, he was diagnosed as suffering from cerebral palsy in 1978 at the age of 1 year. In September 1980 the mother and father adopted a second child, R, who is now 14.

No one denies that the home care given to S has been devoted. These proceedings have arisen solely from social work doubts as to how far that care has taken a form that is appropriate to his needs. The mother's tragic experiences have placed her, in particular, under great strain; to the point that there have been anxieties from time to time as to the effect on her mental health. The marriage of the parents has also come under stress. There are many arguments in the home.

S attended, first as a day boarder and now as a weekly boarder, a special school called Hollybank. It is highly praised by all the professionals concerned in S's welfare, including the psychologist and physiotherapist, because of the stimulus which it affords him and the opportunities it provides for S to receive training in the gradual development of limited skills to improve the quality of his at present very restrictive life. The father, too, accepts that it is good for S to be at Hollybank. The mother, however, is alone in taking a different view. She feels that the school puts too much pressure on S, and that there can be no effective substitute for her own care of him. This has led her to keep him away from school on slight or contrived medical pretexts. Two of those have occurred recently in January and in March of 1993.

The Local Authority became concerned that S was not progressing. Indeed, he was regressing under the influence of the mother's home care. Although she was constant in her attention upon S, she allowed him in their view insufficient stimulus and mobility. Psychological opinion, and the advice of a physiotherapist, has confirmed this view. S is allowed which at home to sit passively for too long —with harmful effects not only on his physical development and the injury which his limbs and posture suffer as a result, but also upon his emotional and intellectual development, for he needs change, stimulus and companionship. Accordingly in March 1993 a Child Protection conference concluded that S was at risk of both actual and likely emotional abuse and neglect.

In December of that year an application was made by the Local Authority for public law relief under the Children Act 1989 —originally for a supervision order but later (by notice given in April 1994) for a care order. At the hearing of that application, which took place before Judge Lightfoot on 5th May 1994, the Guardian ad Litem supported the Local Authority's claim for a care order as the means of ensuring for S, during the last year of his minority, the benefits which a continuance of weekly boarding at Hollybank can confer on him, and as the means of avoiding, for that brief but crucial stage of his life, the retarding effect of simply staying at home.

The Judge heard evidence from the clinical psychologist who had reported on S and from the educational social worker dealing with his learning programme. The Judge also had the evidence of the key social worker for S, Miss Cortese. One of the recommendations that she had made in her written report to the court was expressed in these terms.

"I would suggest the only way of ensuring that S's needs can be met in the future is by the existence of a court order with certain conditions attached which would ensure that S continued to receive the help and support which he needs. I would suggest that the conditions to be attached to such an order are as follows".

She then set out a proposed series of conditions, the first of which would be that he should attend Hollybank as a weekly boarder.

Evidence was also given by the head of Hollybank and by the head of the Physiotherapy Department there. The mother and the father both also gave evidence. In the course of his testimony the father reaffirmed what he had already said in his written statements to the general effect that, while he recognised the advantages of the Hollybank regime for S, he felt bound to support the mother in all the decisions that she makes in respect of S's care and future schooling. She, for her part, as I have already indicated, made no secret of the fact, either in her statement or in her oral evidence, that she is opposed to S's attendance at Hollybank. The Judge also had the oral evidence of the Guardian ad Litem in amplification of a very full and careful report, from which it will be helpful to quote the following account which the Guardian gives first of S's own wishes as communicated to him with the help of a speech therapist; secondly, his impression of the parents and the state of their relationship with each other; and, thirdly, the Guardian's own overall conclusion.

In relation to S's own wishes and feelings he reported as follows.

"S told me he likes the following things about school:

(i) he likes talking to Pam (the teacher) who is a big friend to S

(ii) he likes working on the computer

(iii) S likes attending the Phab Club (for physically handicapped and able bodied)

(iv) S likes shopping with Pam

(v) S likes reading with Pam

(vi) S likes cooking

(vii) S likes Barbara (physiotherapist)

(vii) S likes going out

(ix) S likes Angela (speech therapist).

S then told me the following things that he does not like about school:

(i) S does not like Barbara (physiotherapist) moving his knees in physio because it hurts.

In spite of this last comment, I find it significant that S ended this part of our discussion by confirming that he liked attending Hollybank School. The importance of this is that one of Mrs. V's primary objections to S attendance at Hollybank School relates to the pain she feels S has to endure whilst in physiotherapy at school.

Home

S told me he likes the following things about home:

(i) S loves his Mum and Dad

(ii) S loves the family dog Bobby

(iii) S likes his sister R but she gives him a headache.

S told me he did not like the following things about home:

(i) Mum and Dad clashing and shouting. S told me 'I shout stop it."

Of the parents, the Guardian ad Litem (Mr. Hoggard)

reported:

"3.6 My overall impressions of the mother, gained over a series of visits to the family home, have been of a rather wary, though still friendly, person whose demeanour often seems one of dejection, tiredness and emotional flatness. The mother has displayed wide mood swings in discussions and she can display considerable anger, exasperation and tearfulness. Whilst she is more than capable of entering into reasonable and rational discussions her mood often seems to fade into melancholy. It is my impression that she deeply regrets the decision to allow S to attend Hollybank School as a weekly boarder during school time".

"4.2 The father suffered a serious back injury in 1966 as a result of an accident involving a motorcycle. This meant he was required to undertake light duties at work. His health has also been affected following a heart attack in 1987. I gather these events left the mother to feel it necessary to exclude the father from a good deal of S's care throughout his childhood. This is something the father has only unhappily accepted and he feels it has led to a situation where his opinions and role in S's life was only marginal.

4.5 My own observations of the relationship between Mr. and Mrs. V are that they seem incapable of sitting down and talking together. Rather, the exchanges are more akin to a series of either minor skirmishes or set piece moves (battles) where one or other unleashes a verbal broadside of invective/frustration/bitterness before retreating to another room".

Later in that paragraph he continues:

"It would...