IMPORTANT NOTICE
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.

Case No: ZE5C00364
IN THE FAMILY COURT SITTING AT BROMLEY

IN THE MATTER OF THE CHILDREN ACT 1989

Date: 26th of January 2016.
Before:
H.H.J.REDGRAVE

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RE: P
(permission to withdraw care proceedings)

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Mr.Jean-Pierre Sinclair instructed by the applicant local authority.
Mr.Timothy Parker instructed by Messrs.Duncan Lewis for the parents
Mrs.Margaret Jones instructed by T.V.Edwards LLP for the child, T. 

Hearing date:3rd of November 2015
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JUDGMENT
1.	The applicant local authority seeks to withdraw care proceedings issued in July 2015 in respect of T. b. 26.4.1999, who is now 16 years and seven months old.  The 1st and 2nd respondents are her adoptive parents.

2.	It is not disputed by any of the parties that the appropriate course is for these proceedings to be withdrawn.  At a previous hearing on the 6th of November 2015 I made it clear that I agreed with this view and was willing to give the local authority permission to withdraw.  However, the basis of that withdrawal is a contentious issue and this summary hearing has been listed to consider the basis upon which permission to withdraw will be granted. The local authority submits that it is likely that threshold is met, but the proceedings should be withdrawn on welfare grounds, as an order is not necessary.  The parents submit that these proceedings should never have been issued as the local authority is unlikely to have been able to establish that threshold has been met. 

3.	I have read a core bundle of documents and have also been referred to two separate bundles compiled for the substantive care proceedings. In addition I have been referred to a number of authorities contained in a fourth bundle.  I have had the advantage of considering three very helpful skeleton arguments, which have been supplemented with oral submissions on behalf of each party.  It was agreed by the parties and endorsed by me at the hearing on the 6th of November that the issues should be dealt with on a summary basis and it was not necessary to hear oral evidence. 

4.	Prior to T.’s placement with her adoptive parents in April 2009 and her adoption in 2010, she experienced a severely emotionally and physically abusive childhood.  In addition T. was placed with prospective adopters in August 2006 and this placement broke down in 2007. Her two brothers are in long term foster care and she continues to have supervised contact with them.  This contact was suspended for a period and resumed in the summer of 2015 after T. issued proceedings pursuant to the Children Act 1989.  

5.	As a consequence of T’s traumatic experiences during the first seven or eight years of her life, she has developed serious mental health problems.  She has been diagnosed with an emotionally unstable personality disorder; disinhibited attachment disorder and post traumatic stress disorder. There have been multiple incidents of self harm and she has been sectioned under S.2 and S.3 of the Mental Health Act 1983. She has made several suicide attempts and is currently an in-patient at a Kent Hospital  pursuant to S.3 of the Mental Health Act 1983.  She was placed there on the 10th of August 2015 and her parents and the local authority are in agreement that this is a suitable placement for her.  Her treating psychiatrist Dr. N. is of the view that T. will need to remain at the hospital for between six and nine months.

6.	Mr. Sinclair has made clear to day in his submissions that the local authority does not attribute any culpability to the parents for the significant harm T. has suffered or for her actions which are beyond their parental control. This is a departure from its’ position when these proceedings were issued which was that the parents were not a protective factor for T. her placement with them was at risk of breaking down; and the proceedings were necessary to ensure that T. received treatment, other wise the parents would continue to be obstructive. 

7.	The local authority applied for an interim care order, which was refused by me on the 20th of July 2015. There were case management hearings on the 31st of July and  the 28th of August 2015 by which time a clinician’s meeting had still not been convened. The local authority had still not filed its threshold document and an extension of time was granted to the 29th of September 2015. At yet another management hearing on the 14th of September 2015, the proceedings were adjourned because the clinician’s meeting had still not been convened and no treatment plan for T. had been proposed by any party. On the 6th of November 2015 the local authority sought to withdraw the proceedings as “they were no longer justified as T’s needs are met by mental health services”. By this stage, T’s treating clinicians’ were in agreement that the Hospital in which she was an in-patient was a suitable placement for her and she should be sectioned pursuant to S.3 of the Mental Health Act 1983.  At a round table meeting between the parties, this recommendation was agreed. In addition the Health Commissioning Authority in whose area T. resided agreed to be responsible for her treatment programme pursuant to S.117 of the Mental Health Act 1983 as amended. 

8.	The local authority submits that the court should approach the issue of whether threshold could have been made out in accordance with the judgment of Hedley J. in Re:K (Children with Disabilities: Wardship) 2012 2FLR 745. i.e.:  is a trial on the issues of threshold required? If not, the court should consider whether on summary examination, it appears unlikely that the local authority could prove threshold.  If satisfied that it is unlikely then withdrawal should be permitted without consideration of welfare issues.

9.	There are 15 factual issues listed in the local authority’s threshold document (A.1-2 of the core bundle).   Incidents no.5 and 13 are not relied on in the absence of any independent evidence that they occurred, the only reference to them appearing in the chronology prepared for the substantive hearing.  Incidents 11, 12 and 14 occurred when T. was not in the care of her parents.  However, apart from incidents 5 and 13, there is no dispute that all the incidents took place and they relate to occasions between January 2014 and July 2015 when T. carried out acts of self-harm, often involving the tying of a ligature around her neck.

10.	S.31(2) of the children Act 1989 provides:-A court may only make a care order or supervision order if it  satisfied  (a) that the child concerned is suffering, or is likely to suffer, significant harm and that harm or likelihood of harm is attributable to…….ii) the child’s being beyond parental control. Mr. Sinclair relies upon the judgment of H.H.J.Bellamy, sitting as a judge of the Family Division in Re:K(Post Adoption Placement Breakdown) [2013]1FLR. where a child had suffered extreme damage in the care of her birth parents, resulting in an attachment disorder; expert evidence concluded that no blame could be attached to the adoptive parents for the child’s difficult behaviour and that the child was likely to suffer significant harm because of her reactive attachment disorder and not because she was beyond parental control. 

11.	 HHJ.Bellamy referred to the observations of Lord Nicholls in Lancashire v B [2000] 1FLR: “ ….the phrase “attributable” in S.31(2)(b) connotes a causal connection between the harm or likelihood of harm on the one hand and the care or likely care of the child’s being beyond parental control on the other….. the connection need not be that of a sole or dominant or direct cause and effect, a contributory causal connection suffices”. At para. 149 he concluded that if a child suffered significant harm as a result of a disorder which effected her behaviour and as a result of that behaviour the parent is unable to control the child, that lack of control was at the very least, a contributory cause of the likelihood of future harm. Accordingly he made a care order, in the belief that it was not open to him to ward the child.  Subsequently the Court of Appeal discharged the care order and made her a ward of court.

12.	Mr. Sinclair urges me to take a similar approach in this case and conclude that the harm caused to T. or likely to be caused to her whilst a result of her mental health diagnosis was/is attributable to her being beyond parental control – at least in part.    He has also referred to para.3.1 to the 2008 guidance to the Children Act for the use of local authorities that the court is required to determine as a matter of fact whether a child is beyond parental control and if he/she is it is immaterial who, if anyone is to blame.  This paragraph has been omitted from the current guidance.

13.	Conversely , Mr. Parker on behalf of the parents argues that the comments of Lord Nicholls make it clear that the inclusion of the word “attributable” results in the need to make a causal connection between harm and being beyond parental control, albeit it need not be the only or dominant cause; that on the facts of this case, whilst there is overwhelming evidence that T. has suffered and is likely to continue to suffer significant harm, there is no evidence that this is attributable in any way to the fact that T is beyond parental control. He refers to the authorities of Re: O [a minor] (care proceedings: education) 1992 4 All ER 905 and M v Birmingham City Council [1994] 2 FLR 141 Stuart-White as authority for the proposition that lack of control involved parental culpability.  Having read these two judgments in my view both learned judges assumed this proposition to be the case.  I have also considered Re:L (a minor) Court of Appeal 18.3.1997 

14.	Ms. Jones on behalf of T. (who visited me this morning in the company of two members of staff  from the hospital, where she is an in-patient), and Ms.Jones pointed out that the guardian (and her predecessor) seriously questioned the actions of the local authority in issuing these proceedings.  I voiced that opinion at an early CM hearing and I urged the local authority to consider at a senior level whether these proceedings should continue. Despite the views of the previously allocated social worker in her first and second statements that the parents were not a protective factor for T. and the assertion that the local authority needed to share parental responsibility for T,  T’s previous treating psychiatrist was quite clear in the professionals’ meetings that the parents had only ever had T’s interests at heart and were indefatigable in supporting her and trying to obtain the best treatment. At paragraph 30 of Ms.Jones’ skeleton argument she says “It should be made very clear in the judgment that the parents are not culpable in any way, that there is no evidence to support inadequate parenting and that they have shown themselves to be committed parents and advocates for their daughter.”

15.	 Under the Children and Young persons Act 1969 the courts had the power to remove a child from the care of his/her parents if it was satisfied that the child in question was beyond parental control.  It was not necessary to show serious harm, or likelihood of harm.  The Children Act 1989 changed the law and required harm/likelihood of harm to be proved and for it to be attributable to either the care given by the parents, or the child being beyond parental control. In my judgment the ordinary grammatical construction of the section requires the establishment of a causal connection by evidence, however slight.  That is lacking in the documents filed in this case and with respect I cannot agree with Paragraph 149 of HHJ Bellamy's judgment in Re:K  (see above). Therefore I give the local authority permission to withdraw these proceedings on the basis that it is unlikely on the current evidence to be able to prove threshold.

16.	There is no evidence of any kind that either the mother or the father are culpable in any way for the behaviour of their daughter and the harm she has suffered or is at risk of suffering in the future.   They have fought tirelessly for her to receive the treatment she needs and in my judgment these proceedings should never have been issued.  

17.	I give permission for the mother to disclose this judgment to the professional care body of which she is a member and a transcript of this judgment will be made available and should be placed on T’s social services file.  I make no direction in respect of the assessment filed by T’s previous social worker.  According to the parents it contains many material errors, but it was an assessment compiled before proceedings were commenced and this court has no authority to make directions in respect of it. 

H.H.J.REDGRAVE