Westminster City Council v M (1st Respondent) F (2nd Respondent) H (3rd Respondent)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hayden |
| Judgment Date | 16 March 2017 |
| Neutral Citation | [2017] EWHC 518 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD16P00365 |
| Date | 16 March 2017 |
[2017] EWHC 518 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Hayden
Case No: FD16P00365
and
and
Mr A Verdan QC & Mr C Poole for the Applicant Local Authority
Ms J Bazley QC & Ms S Bradley (instructed by Bindmans LLP) for the 1 st Respondent
Ms Sarah Morgan QC & Mr S Momtaz (instructed by Goodman Ray Solicitors) for the 2 nd Respondent
Mr Charles Geekie QC & Ms S King (instructed by Freemans Solicitors) for the 3 rd Respondent
Ms J Brown on behalf of the Guardian
Hearing dates: 30 th, 31st January 1 st, 2 nd, 3 rd, 6 th, 7 th 8 th, 9 th, 10 th, 13 th & 14 th February 2017
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
I am concerned in this case with H, who was born on the 9 th June 2001 and is therefore 15 1/2 years of age. H is presently subject to an Interim Care Order, having initially been made a Ward of Court. His parents are M (the Mother), aged 53 and F (the Father), aged 67. In August 2016 I approved the Local Authority's Interim Care Plan permitting H to move from the St Mary's Hospital, London to a residential unit in Hammersmith, where he continues to reside.
This matter is listed before me for a 15 day fact finding hearing. The case has generated 40 volumes of evidence. A chronology has been prepared by the Local Authority but virtually every aspect of H's childhood, education and medical treatment is the subject of different interpretations or impressions between the parties. Thus, even a bare chronological outline presents a challenge.
H is referred to throughout the documents, both those generated in hospital and in the legal proceedings, as having 'complex needs'. Certainly H's present situation is complicated and requires patient, skilful intervention, but I, for my part, would draw back from burdening him with this label. What can be said for certain is that H has been diagnosed with a connective tissue disorder which is associated with joint laxity, bowel problems, pain and hypermobility. H also has orthostatic tachycardia. This, as I understand it, is a relatively unknown but, nonetheless, common condition affecting the autonomic nervous system (the blood pressure control system), causing an increase in heart rate on standing. It can produce a range of heart symptoms which include dizziness and blackouts, palpitations, breathlessness and chest pain. The condition can also be associated with hypermobility (high range of joint movement) which can cause joint discomfort or pain. Fatigue is often a prominent feature.
Neither one of these conditions is 'life limiting' and I have been told by Dr Nelly Ninis, Consultant Paediatrician, that there is no reason that H cannot live a full and active life. Whether it is genuine or not, both H's parents have paid tribute at this hearing to Dr Ninis' skill and expertise. In the circumstances, I can see no reason why they would take issue with her encouraging diagnosis of H's potential.
H has been subject to multiple medical interventions. He has been heavily medicated on opiates and spent lengthy periods in hospital throughout his life including: The Great Ormond St Hospital (GOSH), The Royal London and St Mary's. H has been within the purview of the Local Authority's Disabled Children's Team since he was 8 years of age. He was most recently in St Mary's Hospital, Paddington, between November 2015 and September 2016, where the lead consultant in charge of his care was Dr Ninis. In March 2016, the Local Authority received a referral from the hospital raising numerous concerns about the parents' behaviour towards hospital staff and their general care of H. A strategy meeting was convened on 17.03.16 and an Initial Child Protection Case Conference on 18.04.16.
On the 15.04.16 H's mother was arrested for allegedly tampering with H's medical equipment, which I will address in detail below. On the 26.04.16 H's father was arrested on a separate allegation of tampering with H's medical equipment. Both parents were bailed pending further investigation. Bail conditions required there to be no contact with H other than supervised by the Local Authority. During the police investigation various statements were taken from health professionals in respect of this alleged tampering. In addition, the police requested a report from Dr Ninis. In early November 2016 the police confirmed that no further action would be taken on the tampering allegations made against both parents and bail conditions were discharged.
At a hearing on the 22.07.16 the court ordered the removal of H's Hickman Line (a feeding line that H had been using for some time). The removal was supported by the treating medical team, the Local Authority and H's Guardian. The Hickman line was successfully removed in early August.
During these proceedings the court ordered the instruction of a Consultant Paediatrician, Dr Yadav, to undertake a paediatric overview of the case. This was to include an analysis of: treatment and medication received by H; the parents' co-operation with professionals; any suggestion of exaggeration or fabrication of symptoms or conditions by the parents. The instruction was supported by the parents and, as I understand it, it was they who identified Dr Yadav as suitable to undertake this forensic exercise.
Before I turn to the allegations specifically, I should like to record two further important factors. Firstly, H wishes, more than anything else, to be able to leave institutional care. He would very much like to go home to live with his parents. This strikes me as so instinctive as to require no further comment. Secondly, Dr Ninis told me, in powerful language, what in her view, the future medical/emotional/educational objectives should be for H:
' [H]has been taught how to die, he now has to learn how to live'
The Local Authority's Schedule of findings sets out the following allegations:
i) The parents have misreported and over-reported symptoms in H;
ii) The parents have fictitiously presented H's condition and H has learnt to present accordingly;
iii) The parents have provided misleading/misinformation to professionals;
iv) The parents each tampered with H's TPN pump, which could have impeded his treatment and caused him harm;
v) The parents have misused medication for H;
vi) The parents have failed to cooperate with professionals;
vii) H has learnt behaviour;
viii) The parents' behaviour exposed H to medical and health risks;
ix) The parents prevented H from attending and engaging in education.
In their closing submissions on behalf of the Local Authority, Mr Verdan QC and Mr Poole emphasise that the Schedule was intended to be 'illustrative' rather than 'definitive'. More particularly they amend their findings at para (iv) and (v) above in this way:
"Having heard the oral evidence the LA amend those findings in two respects. Firstly, in respect of the tampering with the pump, the evidence is now clear that the tampering caused an alarm which stopped the pump; thus making it impossible for any air bubbles to enter [H]'s system. The LA therefore accept that the tampering did not and could cause direct physical harm. However, the LA contend that the mere fact of tampering by his parents, which [H] has since learnt of, has exposed him to emotional harm particularly given that he was so anxious about his pump. Secondly, in respect of misusing medication the LA accept that the evidence is not that the parents overused medication by administering more than was prescribed but rather that they did not cooperate with the weaning programme, a subtle but important difference.
In considering these allegations it is necessary to say something of the scope and range of the available evidence and how it should be approached. Ms Bazley QC, on behalf of M, has consistently signalled the importance of forensic rigour. She identifies the 'potential unfairness' of placing reliance on disputed records and the inherent dangers of relying on hearsay evidence. Notwithstanding the 40 bundles of evidence filed in the case Ms Bazley identifies deficiency (correctly) in the absence of the Chelsea & Westminster Hospital records or any notes of the 'psychological intervention' by Ms Becky Armstrong during the period January 2016 until September 2016.
Ms Bazley roots her argument in case law, particularly emphasising the judgment of Sir James Munby (P) in Re A (A Child) (Fact-finding hearing: speculation) [2011] EWCA Civ 12 (see also: Re B [2008] UKHL 35):
"It is an elementary proposition that findings of fact must be based on evidence, including inferences which can properly be drawn from the evidence, and not on speculation or suspicion."
Ms Bazley allies herself with the President's reasoning and places significant weight upon it. The argument requires to be set out in full:
As to the evidence required to prove the fact and the use of social work, medical and other records, it is clear law that the best evidence is required. In Re A (A Child) [2015] EWFC 11, the President said that the proposition in Re A (above) that findings must be based on evidence, carried with it the fundamental principles that:-
'..the local authority, if its case is challenged on some factual point, must adduce proper evidence to establish what it seeks to prove. Much material to be found in local authority case records or social work chronologies is hearsay, often second-or third-hand hearsay. Hearsay evidence is, of course, admissible in family proceedings but ….a local authority which is unwilling...
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