Trust A v X (by the Child's Guardian) and Others

JurisdictionEngland & Wales
JudgeThe Honourable Mr Justice Keehan,Mr Justice Keehan
Judgment Date31 March 2015
Neutral Citation[2015] EWHC 922 (Fam)
Docket NumberCase No: FD14P01079
CourtFamily Division
Date31 March 2015

[2015] EWHC 922 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mr Justice Keehan

Case No: FD14P01079

Between:
Trust A
Applicant
and
(1) X (By the Child's Guardian)
(2) A Local Authortity
(3) Y
(4) Z
Respondents

Mr John McKendrick (instructed by Mills and Reeve LLP) for the Applicant

Mr Jeremy Ford (instructed by CAFCASS Legal) for the First Respondent (By the Child's Guardian)

Mr Jonathan Cowen and Mr Edward Bennett (instructed by A Local Authority Solicitors) for the Second Respondent

Third Respondent Y in person

Fourth Respondent did not appear nor was represented

Hearing dates: 9 and 10 March 2015

The Honourable Mr Justice Keehan

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Mr Justice Keehan

Introduction

1

D was born on 23 April 1999 and is 15 years of age. He was diagnosed with Attention Deficit Hyperactivity Disorder at the age of 4, with Asperser's Syndrome at the age of 7 and with Tourette's syndrome at the age of 8.

2

In March 2012 a referral was made to the Child and Adolescent Mental Health services because of his challenging behaviours at home. His treating community psychiatrist made a referral to Hospital B. On 15 October 2013 he was informally admitted for a multidisciplinary assessment and treatment. D remains at Hospital B to date. In the opinion of his treating psychiatrist, Dr K, D is now fit to be discharged from the hospital. The local authority is in the process of identifying a suitable residential placement and it is hoped that D will be placed by the end of this month.

3

On 11 December 2014, and in light of the decision of the Supreme Court in Surrey County Council v P, Cheshire West and Chester Council v P [2014] UKSC 19 [2014] AC 896 (' Cheshire West'), the hospital Trust issued an application under the inherent jurisdiction of the High Court seeking a declaration that the deprivation of D's liberty by the Trust was lawful and in his best interests. On 17 December 2014 Holman J made an interim declaration that the deprivation of liberty was lawful. He further gave directions for the hearing of this application.

The issues

4

I am asked to determine the following principal issues:

a) does the placement of D at Hospital B satisfy the first limb of the test propounded by Baroness Hale in Cheshire West;

b) if so, does the parents' consent to his placement come within the exercise of parental responsibility in respect of a 15 year old young person. In other words are the parents able to consent to what would otherwise amount to a deprivation of liberty; and

c) if not, should the court exercise its powers under the inherent jurisdiction to consider declaring that the deprivation of liberty of D at Hospital B is lawful and in his best interests.

5

On 9 March I heard the parties' submissions on each of these issues.

6

The Applicant Trust submits that the circumstances in which D lives at Hospital B satisfy the first limb of the Cheshire West test namely:

"the objective component of the confinement in a particular restricted place for a not negligible length of time."

7

Further the Trust submits that D's parents cannot consent to his placement at Hospital B because such a decision, to consent to what would otherwise amount to a deprivation of liberty, falls outside the 'zone of parental responsibility'.

8

Accordingly, the Trust submits the appropriate course is to seek the court's approval of D's placement under the inherent jurisdiction of the High Court.

9

The local authority adopts a diametrically opposed stance. It submits that the circumstances of D's placement do not amount to a deprivation of liberty. Further, it submits that the decision of D's parents to consent to his placement at Hospital B falls within the proper exercise of parental responsibility. Accordingly what might otherwise constitute a deprivation of liberty does not do so because the second and third limbs of the test in Cheshire West are not satisfied namely:

"(b) the subjective component of lack of valid consent; and

(c) the attribution of responsibility to the state".

10

The children's guardian confined her submissions to observations that D was well placed at Hospital B and was progressing.

11

D's mother, W, acted in person. She did not seek to make any submissions. D's father, M, was unable to appear at this hearing but did not seek an adjournment nor to make any submissions on the principal issues.

Background

12

D was diagnosed with Attention Deficit Hyperactivity Disorder, Asperger's Syndrome and Tourette's Syndrome from a very early age. On admission to Hospital B in October 2013 he was further diagnosed as suffering from a mild learning disability.

13

His parents struggled for many years to care for D in the family home. He had significant difficulties with social interactions. His behaviour was challenging; he was observed to be physically and verbally aggressive. D would urinate and defecate in inappropriate places. He presented with anxiety and paranoid behaviours. All of this had a marked adverse effect on D's younger brother R. Medication had limited effects.

14

In March 2012 D was referred to his local Child and Adolescent Mental Health team. His treating psychiatrist made a referral to Hospital B who agreed to admit D informally for multi disciplinary assessment and treatment.

15

Hospital B provides mental health services to children and young people aged between 12 and 18. D lives within the grounds of the hospital. He attends an on site school on a full time basis.

16

His parents and brother visit him at the unit on a regular basis. D frequently speaks to his parents on the telephone. He enjoys home visits usually at a weekend for up to six hours but he is supervised at all times.

17

Dr K describes D's life at Hospital B as follows:

"D is residing on X one of the two buildings which make up the adolescent service. Each building is a six-bedded unit. Each young person has their own bedroom, and shares bathroom and living areas with the other patients. There is a school room attached to each building, and all the students receive full time education provided from a special school outreach service."

"D's unit is staffed 24 hours a day.

It has a locked front door. D does not leave the ward without a staff member or his family accompanying him. He has been offered opportunity to undertake small tasks by himself, such as emptying the bins, but he says he is scared. Unescorted leave would be considered as part of his treatment package to see how he fares.

D has his own bedroom, which he can access whilst he is on the unit at his leisure. He shares a bathroom and residential areas within the building.

D is on general observations. This means that he is checked on every half an hour or so. However, D seeks out contact with staff more regularly within that time and this means that he is under direct observation on a much more regular basis. I am of the view that he is under constant supervision and control.

His school is integral to the building. He goes off site for all relevant school activities such as, to music sessions on site, and to activities which take place in the community, such as shopping and cafes. He leaves the unit on a daily basis, accompanied by staff.

He is independent in his self-care, and requires minimal support for this. He eats a varied diet independently, and is able to vocalise his preferences.

Attempts to engage him in more serious conversation unnerves him, and he will try to deflect the subject, or directly challenge the person, by telling them that he is not happy. I am of the view that this is reflected in the anxiety he has shown around his discharge. My team will need to manage this carefully within the discharge process.

When out in the community, D is supported one-to-one. He has stated that he would be anxious to go out on his own, and prefers to be accompanied by staff. On occasion he has to be reminded about his behaviour when out, as he might stare and pull faces at strangers. He has been encouraged to do some tasks independently, such as emptying the bins outside, but he has stated that he was too anxious to do it by himself and so he is accompanied when doing this."

18

In relation to the reviews of D's progress and the suitability of his continued placement, Dr K reported:

"The Trust undertakes weekly Multidisciplinary Team reviews of D's care by way of a team review at Hospital B. These involve those involved in D's care, including myself, nursing staff, speech and language specialists, occupational therapists and representatives from his school (which is on site at Hospital B).

In addition, on a five or six weekly basis, D's care is reviewed by members of the Trust and local services. This includes A Local Authority, whose representatives are invited to attend. This meeting gives an overview of progress over the last 6 weeks. Historically A Local Authority had not attended as there was no social worker allocated. Those present will discuss D's presentation in depth and any changes/proposed changes to his care plan and medication. Feedback and input from his family are obtained also and a key component of the meeting is to plan next steps in his care, including discharge planning."

19

D is assessed by Dr K as not being 'Gillick' competent to consent to his residence and care arrangement or to any deprivation of liberty.

20

Dr K...

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