Judgment: Re W (A Child) [2021] EWHC 2844 (Fam)

https://www.bailii.org/ew/cases/EWHC/Fam/2021/2844.html

There is an emotive context to most children cases that come before the Family Court – however, that context is amplified when it involves children that are profoundly sick or disabled. Such emotion derives not only from an appreciation of the challenges that the subject children themselves have to face (which could include the challenge to simply stay alive) but also their families and others involved in their care.

It is not difficult to imagine how and why such challenges impact upon the child’s parents and their corresponding ability to work with professional support agencies. Displacement of loss, accompanying anger and a sense of powerlessness have been reasons suggested by Hedley J (in Re LBH (A Local Authority) v KJ & Others [2007] EWHC 2798 (Fam)).

Re W (A Child) [2021] EWHC 2844 (Fam) is the most recently reported case dealing with deadlock arising between parents and social/health care professionals and identifies the means by which similar disputes might be resolved.

Background

• Re W involved a 12 year old boy (‘W’) who was the subject of a care application brought by Lancashire County Council (‘LCC’).
• W’s disabilities arose from a genetic defect and are significant in extent and degree:- he requires the use of a wheelchair at all times; he uses a gastrostomy feeding tube; he has epilepsy and Aerophagia (a swallowing disorder); he is known to self-harm and hold his breath to the point where he loses consciousness (occasionally causing hypoxic episodes). Such disabilities and behaviours necessitated a full time regime of care by professional care providers – routinely including 2:1 ratios.
• LCC’s application was made pursuant to W’s care provider indicating that it was no longer willing to offer a service to W on account of what the provider perceived to be a ‘great deal of resistance and… combative interference with their staff’ by W’s parents.

Judgment

• It was in the context of the parents’ ‘high octane conflict with the raft of professionals who seek to support their child’s care’ The Honourable Mr Justice Hayden had earlier in the proceedings allowed the instruction of Dr Kate Hellin to provide a psychological assessment of both parents in the hope of achieving a better understanding of some of their interactions with the professionals.
• Dr Hellin’s assessment was hailed by Hayden J as ‘landmark’ and he considered that it ‘so comprehensively captured the dynamic of this kind of conflict’ that ‘the analysis… requires wider distribution’.
• Dr Hellin was clear that the court would not be best assisted by evaluating the issues in terms of the parent’s perceived failures or any mental health difficulties and that ‘the entire aetiology of these challenging circumstances is better understood within “a different paradigm” and should be considered from “a systemic or organisational perspective”.’
• Dr Hellin’s assessment of the dynamic offered an understanding of challenges faced by all involved with W’s care (both parents and professionals); did not seek to apportion blame and recommended intervention ‘to understand the dynamic processes that have led to the current difficulties, to step back from mutual blame and recrimination, to establish working practices which will contain and diminish sensitivities and optimise collaboration between the different parts of the system’
• Such was the nature of Dr Hellin’s assessment that it led to an agreed final disposal of the application.
• Hayden J fully endorsed that approach as ‘compelling’ and went on to identify its potential applicability beyond applications brought under the Children Act 1989 such as those made to the Court of Protection.

Takeaway Points

• The case serves as a reminder of the context in which threshold is to be considered… ‘the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him’. The reasonableness of the care given requires to be evaluated strictly by reference to the particular circumstances and the individual child. In this case, Dr Hellin considered that it required a recognition by the professionals that these are ‘ordinary parents dealing with extraordinary circumstances’.

• The course taken by the court allowed the instruction of an expert to better understand the parents’ interactions with professionals. This is in contrast to an approach that might have been taken to simply explore the minutiae of parents’ conduct to establish factual matrix of parental care, their failures and own mental health difficulties which heightened the corresponding and unwelcome risk of ongoing polarisation/entrenchment to the potential detriment of W.

• The approach facilitated solution-focus rather than allocation of blame and consequent embitterment, polarisation of views and embattlement… an approach that would encourage mutual understanding and a collaborative approach between parents and social/health care professionals (the importance of which has to be seen in the context of W’s needs seemingly being lifelong, the state’s corresponding involvement also likely being lifelong and W’s need to be supported by an effective working relationship between those invested in serving his best interests).

• Value of the instructed expert – Dr Hellin’s assessment was seemingly independent, balanced, evidence-based and solution-focused. It changed the landscape of the case. Professional experts involved in Family Justice should routinely adopt those principles when reporting to the court and aspire to emulate the impact that it had on this family.

• Subject to the immediacy of any presenting risk requiring judicial intervention, it may be that the approach adopted in this case might provide a blueprint for the way in which social/health care providers attempt to manage such cases without resorting to litigation. No doubt the court would welcome such reprieve not only in light of the ever increasing demands placed upon it but also Hedley J’s comment in Re K and Ors (Children) [2011] EWHC 4031 (Fam) that ‘the management of these challenging cases did not sit comfortably or indeed entirely appropriately within the scope of Part IV of the Children Act 1989’.