Surrey County Council v M (1st Respondent) F (2nd Respondent) E (3rd Respondent)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Theis Dbe |
| Judgment Date | 30 July 2013 |
| Neutral Citation | [2013] EWHC 2400 (Fam) |
| Date | 30 July 2013 |
| Court | Family Division |
| Docket Number | Case No: NZ13C00037 |
[2013] EWHC 2400 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Theis Dbe
Case No: NZ13C00037
Mr Darren Howe & Ms Lucy Sprinz (instructed by Surrey County Council) for the Applicant
Ms Jane Crowley Q.C. & Ms Caroline Middleton (instructed by Creighton Solicitors) for the 1st Respondent
Ms Frances Judd Q.C. & Ms Alison Williams (instructed by Owen White & Catlin Solicitors) for the 2nd Respondent
Ms Doushka Krish & Mr Joseph Moore (instructed by Blackfords LLP) for the 3rd Respondent
Mr Richard Smith (instructed by Mills & Reeve LLP) for Virgin Care Services Limited
Hearing dates: 15th 26th July 2013 and 30th July 2013
This matter concerns a little girl E born [a date in] 2011, now 23 months old. She is the daughter of M age 32 years (the mother) and F age 38 years (the father). They are the Respondents to care proceedings issued by Surrey County Council (the LA) on 10 April 2013.
This matter was listed for a 13 day fact finding hearing to establish whether the threshold criteria were established. The LA case, in summary, was that the parents had put E at risk of significant harm by cutting the inflation cuff tube (which formed part of her ventilation equipment) on at least two occasions and had failed to properly understand E's medical needs, had unreasonably escalated E's clinical presentation and had not kept professional boundaries with staff. The threshold schedule had over 50 sub-paragraphs detailing the facts relied upon.
I gave permission for Virgin Care Services Limited (Virgin Care) to take part in these proceedings to the extent that they saw the papers (many of which originated from them) and they had permission to seek my leave to question any witnesses within clearly defined parameters. Mr Smith was present throughout the hearing and asked a very limited number of questions of two witnesses.
On the 9 th day, after the court had heard oral evidence from 22 witnesses and before the LA had closed its case, the LA sought permission to withdraw the proceedings on the basis that they recognised they were not going to be able to establish the threshold criteria to the required standard, namely the balance of probabilities. The document submitted by the LA on that day analysed why the LA had reached that conclusion. That has been supported by a detailed chronology submitted by the LA with their written closing submissions as to how the evidence developed during this hearing. The LA position was not opposed by any of the other parties. Although I approved that application I considered it important to set out how this position came about and consider the circumstances surrounding the way E had been removed from her parents' care on 28 February 2013.
It is not suggested that the issues raised in this case should not have been investigated. What is criticised is the way the information has been presented, both before and after the issue of proceedings, and the process that was used by the LA. It has graphically illustrated the dangers of not rigorously analysing the evidential foundation for and against any allegations made and not exercising a balanced judgment. Due to the complexities of the case it required strong, experienced leadership from the LA who hold primary responsibility for safeguarding issues. Put simply, that was not provided and there was no check on the structures that failed to provide what was required in this case.
Mr Howe has rightly reminded the court of the wise words of Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050 a case where he declined to hold that the threshold was crossed and observed at paragraph 50 that 'society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent' and at paragraph 51 that 'significant harm is fact specific and must retain the breadth of meaning that human fallibility may require of it' but that ' it is clear that it must be something unusual; at least something more than the commonplace human failure or inadequacy'.
I would like to express my gratitude to the legal teams for all the parties in this case, both counsel and solicitors. The logistics have been herculean. This substantive hearing has taken place only 14 weeks after proceedings were issued. The court bundle runs to 19 lever arch files. The legal teams have collaborated constructively to produce chronologies dealing with the various issues in this case, which have been invaluable in ensuring this hearing was not only effective but, importantly, also manageable. Behind each of those documents will have been hours of painstaking analysis and cross referencing of the original records from a number of different sources. All of the advocates have conducted this hearing to the highest standard; in particular, Mr Howe, on behalf of the LA, for the seamless way he lead his witnesses through their evidence in chief to bring the case to life through the contemporaneous case recordings, and Ms Crowley Q. C., on behalf of the mother, for her detailed, well targeted and extremely effective cross examination which turned the case round from what it first appeared to be on paper. This case has illustrated the vital importance of advocates who are experienced in undertaking this work and the value of the forensic process. Without that expertise and this process the outcome in this case could have been very different, which would have been detrimental to E's welfare.
The parents in this case have shown enormous fortitude. The events of the last two years must have been extremely difficult. They have had to cope with being told soon after E's birth that she had only a 5% chance of survival, endure the enormous uncertainty of E having many medical operations and procedures whilst she was in hospital for nearly a year, coped with the detailed training they needed to undertake before E could come home and manage E's care at home with a complex care package, involving around 30 people who spend significant periods of time in their home assisting them in caring for E. Many parents would have buckled under any one of those factors, let alone the combination of them all. During this hearing they have quietly and attentively sat through the evidence, whilst each part of theirs and E's life has been picked over. It is perhaps an understatement to say that cannot have been easy. It is clear to me they have only been able to do so through their devotion to E, which in my judgment is without question. That is the golden thread that has guided and sustained them through all that they have endured.
Background
E was born with a number of difficulties and required highly specialist care. She required intubation and ventilation at birth and has been ventilator dependent ever since. She was admitted from the community hospital where she was born to the Royal Brompton Hospital (RBH) when she was five days old, and remained there for the next 11 months.
Subsequent investigations at the RBH revealed E had a complex congenital heart disease requiring surgery on 17 August 2011, when she was only 10 days old. She remained ventilator dependent postoperatively and a bronchoscopy on 30 August 2011, when only 23 days old, demonstrated tracheomalacia and bronchomalacia. She subsequently had a tracheostomy performed on 8 September 2011. She was then just a month old. She had a cuffed tracheostomy tube, this was inflated constantly and attempts to deflate it were associated with increased respiratory rate within a few minutes.
E was noted to have dysmorphic features, including a neck cystic hygroma, absent thymus, thin ribs and a bell shaped chest. Genetic analysis diagnosed 22Q deletion syndrome, a chromosomal disorder consistent with a diagnosis of Di George syndrome.
Due to ongoing ventilator dependence, together with feeding and medication via a gastrostomy tube, plans were made for a care package to support her in the community, along with a training package for the parents. This training was initially conducted at the RBH.
E was discharged from the RBH to the Tadworth Children's Trust Hospital on 9 July 2012. The parents' training continued until they were considered proficient in all the necessary competencies, which included such matters as being able to undertake a tracheostomy change, changing the tracheostomy tapes that secure the tracheostomy tube on E's neck, and inflating the cuff (a small balloon that when inflated internally supports E's breathing). To their very great credit the parents were able to complete training and become competent in carrying out these complex tasks. There was some suggestion the parents, particularly the mother, took more time than was usual to achieve all the relevant competencies, but as the evidence developed in the hearing it was clear this had to be looked at in the context of the complexity of E's health needs and the de-skilling of the...
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