X (A Child) (No 3), Court of Appeal - Family Division, August 03, 2017, [2017] EWHC 2036 (Fam)

Issuing Organization:Family Division
Actores:X (A Child) (No 3)
Resolution Date:August 03, 2017
 
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Neutral Citation Number: [2017] EWHC 2036 (Fam)

Case number omitted

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Sitting at MANCHESTER

Judgment handed down at LIVERPOOL

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 3 August 2017

Before :

SIR JAMES MUNBY PRESIDENT OF THE FAMILY DIVISION

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In the matter of X (A Child) (No 3)

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Mr Michael Jones (instructed by the local authority) for the applicant Cumbria County Council

Ms Rebecca Gregg (instructed by Gaynham King & Mellor) for X

Mr Simon Rowbotham (instructed by Denby & Co) for X's guardian

Mr Mungo Wenban-Smith (instructed by Hill Dickinson LLP) for the relevant NHS Clinical Commissioning Group

Ms Elizabeth Wheeler (of DAC Beachcroft LLP) for NHS England

Hearing dates: 31 July, 1 August 2017

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Judgment Approved

SIR JAMES MUNBY PRESIDENT OF THE FAMILY DIVISION

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 child and members of her 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.

Sir James Munby, President of the Family Division :

  1. This case was last before me at Kendal on 15 June 2017: Re X (A Child) (No 2) [2017] EWHC 1585 (Fam). At that time, X, as I shall continue to refer to her, was only a few days short of her 17th birthday and was detained, pursuant to a Detention and Training Order imposed by the Youth Court, in a secure unit which I shall continue to refer to as ZX. She was, at that time, expected to be released in mid-August 2017.

  2. I do not repeat what I said in my previous judgment about the background to these proceedings. Anyone reading this judgment should at this point read my previous judgment. It requires to be read in full, and considered very carefully indeed, by everyone concerned professionally or otherwise with X. For present purposes I can be comparatively brief.

  3. For the reasons set out in that judgment, I made a care order, even though there was no plan as to what should happen when X was released from ZX. I quote from the judgment (para 19), where I referred to:

    ``the enormity of the task facing the local authority and the stark reality that, for whatever reasons, the local authority has not yet been able to articulate any workable care plan for X, let alone to identify where she might be accommodated and what services should be made available for her. I can only echo and endorse the guardian's bleak assessment:

    ``there is currently no plan as to what will happen, where she will go, what support will be in place.''''

  4. I went on (paras 26-28):

    ``26 In these circumstances the court is placed in very considerable difficulty. The need for a final care order is overwhelming. It is imperative in X's interests (a) that the local authority has parental responsibility and (b) that X can enjoy, now and, after she leaves care, in accordance with the `leaving care' legislation, all the benefits which will accrue to her if there is a care order. But there is at present no realistic care plan available for me to approve, other than (see below) a plan of action which it is hoped will lead to the formulation of a proper care plan. Yet my ability to make a care order, given X's age, will be gone in a matter of days. What am I to do?

    27 The conundrum can properly be solved because, as is common ground between the local authority and the guardian, and I agree, (a) if an appropriate placement for X can be found which properly meets her very complex needs, it is likely to involve a deprivation of her liberty requiring judicial sanction and (b) ... that sanction is, in the circumstances, properly a matter for the Family Division rather than the Court of Protection ...

    28 What, therefore, I can, and do, approve, for the purposes of the care order, is a plan of action which, it is to be hoped, will lead to the formulation of a properly worked-up care plan that can be put before me for my approval, exercising the inherent jurisdiction, before X is released from ZX.''

    I summarised (para 30) the components of the plan of action.

  5. Hence the latest hearing before me, at Manchester, on 31 July 2017.

  6. Before proceeding any further I need to emphasise the central, dominating reality of this case. On a large number of occasions while at ZX, X has made determined attempts to commit suicide. Following a visit to see X on 8 June 2017, the guardian recorded in an email dated 9 June 2017 what she had been told by the staff at ZX:

    ``The entire staff group's opinion that:

    * `X's goal is not to go to [her home town] it is to kill herself' (emphasis added)

    * X's intention to kill herself has `intensified' in the past 2 weeks

    * The care plan to send her back to any community setting, especially [her home town] `is a suicide mission to a catastrophic level'. Staff do not think it will take more than 24 to 48 hours before they receive a phone call stating that X has made a successful attempt on her life (emphasis added).

    ...

    The staff group all agree that X will not manage in the community, that she requires long-term adolescent mental health unit input (emphasis added).''

  7. A report from ZX dated 14 June 2017 was profoundly disturbing. It included this:

    ``It is a shared view between staff and CAMHS specialist clinicians that ZX is not the correct placement for X based on her current and on-going presentations. It is felt that we are unable to meet the escalation of her needs and a more clinical environment would be more appropriate (emphasis added).''

  8. I concluded my judgment as follows (paras 34-35):

    ``34 Without, I hope, trespassing on matters which will be before me for decision at the next hearing, I need to say this. There is, as is apparent from what I have already said, a substantial body of professional opinion that what X needs - and, it might be thought, desperately needs - is therapy in some appropriate clinical setting. That body of opinion needs to be taken very, very seriously, as I am sure it will be.

    35 The final point is this. If there is no effective, realistic and above all safe plan in place for X when she is released from ZX, the consequences, given her suicidal ideation, do not bear thinking about. If the fears of ZX are well-founded - and this, for the time being, is the basis upon which we must proceed - we should be left with little but the hope that the police would have had occasion to take X into custody before she was able to cause herself irreparable harm. Is that really the best the care system and the family justice system can achieve?''

  9. The care order that I made on 15 June 2017 contained the following recital, which I emphasised in my judgment (para 31):

    ``The court has expressed the need for the local authority to make urgent enquiries in relation to potential placements for X forthwith. It has been clear that there must be no delay in instigating these enquiries; the local authority will make such enquiries forthwith.''

  10. I could hardly have been clearer, both in describing X's needs and in stressing the imperative to find an appropriate placement for her before her release from ZX. For all that has actually been achieved in the last few weeks, however, despite unrelenting efforts both by the local authority and by other agencies, I might as well have been talking to myself in the middle of the Sahara.

  11. On 29 June 2017, Dr Amith Paramel, a Consultant Psychiatrist, completed a NHS England Form 2 Access Assessment for Inpatient Services for Children & Young People in relation to X. He recorded having been told that ``the medium secure network ... are of the view that her risk to others does not meet the threshold for a medium secure unit.'' His own view was expressed as follows:

    ``[X] would benefit from a period of assessment (possibly under detention) to assess her mental health needs. Given her history of aggression and violence she will not be suitable for a general adolescent unit. Short term PICU [psychiatric intensive care unit] admissions would also be unsuitable for her. [X] struggles to make meaningful and therapeutic relationships and hence a short term admission would be counterproductive.

    A low secure unit which has the option to provide longer term input would be able to meet her needs.''

  12. I need to explain at this point the difference between low and medium secure units as set out in NHS England Form 1 Guidance re decision-making when making a secure adolescent inpatient referral.

  13. So far as material for present purposes, the referral criteria for Low Secure Provision are:

    ``The young person is liable to be detained under either Part II or Part III of The Mental Health Act 1983

    AND:

    The young person is not safely managed in an open environment and is assessed as having needs than cannot be managed by shorter term admission to a psychiatric intensive care unit (PICU)

    AND:

    The young person presents a risk of harm to others; themselves or suffers from a mental disorder that requires inpatient care, specialist risk management procedures, and specialist treatment intervention.''

    The referral criteria for Medium Secure Provision include:

    ``The young person presents a significant risk to others of one or more of the following:

    · Direct serious violence liable to result in injury to people

    · Sexually aggressive behaviour

    · Destructive and potentially life threatening use of fire''.

    Form 1 sets out a number of ``Important Considerations'', including:

    ``Young people with mental disorder who present a grave danger to the general public ... should be referred to the medium secure network.

    ... Young people with brief episodes of disturbed or challenging...

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