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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> A (removal from special guardians), Re [2017] EWFC B85 (11 August 2017) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2017/B85.html Cite as: [2017] EWFC B85

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IN THE FAMILY COURT
Sitting at Wolverhampton

		11th August 2017.

1. This case concerns a girl who I will call A. From being tiny until February of this year she was cared for by her maternal grandparents who became her special guardians; this meant they had enhanced parental responsibility for her. Since then she has been in a specialised residential placement while foster parents who can meet her needs are identified. She is now 11 years old.
2. She is lucky her grandparents were willing and able to care for her. It prevented her from being removed from her family completely, as her parents were unable to care for her safely and her grandparents have provided a loving home for her. She has a range of particular medical needs, with a degree of learning difficulty and her functioning is very effected by an illness she was born with, which runs in her family but much less severely I am told, meaning she needs considerable physical support to have an ordinary life as possible. Her illness is life limiting. As a result she has had care and support from health and social care services and support required for a child with disabilities throughout her life.
3. The case was brought by X local council as they considered she was at risk of harm while in grandparents care. Grandparents dispute that and seek her return home to them. Her parents have not been in a position to look after her but have participated in this court case and the young person has been represented by her own solicitor and children's Guardian. Her Guardian described her to me in a report for the court as having complex health needs, fully dependent on carers and "delightfully engaging, appealing and rewarding young woman…well-liked by adults and children due to her sunny disposition, sense of humour and friendly bubbly caring nature."
4. This must inevitably and properly mean credit should be given to her carers bringing her up this way. To my mind it is a tragedy that the impasse between her carers and professionals has resulted in court litigation which, because of its legal nature, means social services have to assert and prove that while in the care of her special guardians she was at risk of or experiencing significant harm as a result of their parenting. They must do this since they cannot organise a care plan for her without the special guardian's consent unless the court has found this proved and also accepted that her welfare needs can best be met this way so that under a care order the local authority can share parental responsibility for her with her parents and decide where she should live.
5. The grandparents were by the final hearing unrepresented, though have had two different firms of solicitors representing them beforehand , a service provided free of charge to carers due to the seriousness of court cases about children being removed from carers by social services. At the end of her questioning of the Guardian Mrs X left the court after I had told her to sit down and allow the Guardian to complete what she was saying. Mr X thought she would not return for the judgment and I have therefore typed it out so both can understand and have a copy of what I have to say, and it may also be a suitable record for the child herself.( In fact Grandmother did come to court )
6. The court did initially endorse removal from her special Guardians, her maternal grandparents on a temporary basis while the court could examine the facts, but at this hearing I have had to consider all the legal issues fully. Grandparents presented their case in the clear and forceful way that has been their hallmark in battling for this child as they feel they have had to do to obtain the care and services she has needed once diagnosed. This "battle" though in my view has led to a confrontational and difficult relationship with a range of professionals over recent years and therefore to this court case. They would say professionals have wrongly judged them and failed to provide the full legal support to which the child and themselves as carers are entitled, leading to stress and strains inevitably.

The Law

7. A care order or supervision order may only be made on the application of a local authority if the Court is satisfied that the "threshold criteria" under Section 31(2) Children Act 1989 are established. Section 31(2) provides that:

i. "A court may only make a care order or supervision order if it is satisfied – (a) that the child concerned is suffering or is likely to suffer significant harm; and (b) that the harm or likelihood of harm is attributable to the care given to the child or likely to be given him if the order were not made, not being what it would be reasonable to expect a parent to give him; ……..."

8. Section 31(9) defines "harm" as meaning ill-treatment or the impairment of health or development and "development" as meaning physical, intellectual, emotional, social or behavioural development and "health" includes both physical and mental health.
9. If the threshold is established, the court then has to pass on to the 'welfare' stage with a view to considering what, if any, order is to be made. Section 1 of the Children Act 1989 requires me to treat the child's welfare as paramount and to apply the 'welfare checklist' in arriving at my decision.
10. The "welfare checklist" is set out in section 1(3) of the Act and requires the court to particular regard to:

a. the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

b. his physical, emotional and educational needs;

c. the likely effect on him of any change in his circumstances;

d. his age, sex, background and any characteristics of his which the court considers relevant;

e. any harm which he has suffered or is at risk of suffering;

f. how capable are each of his parents, and any other person or relation to whom the court considers the question to be relevant, is of meeting his needs;

g. the range of powers available to the court under this Act in the proceedings in question."

11. The Threshold. At my request the local authority amended this document to make its contents less challenging but even so grandparents are unable to accept any of it is true. It is a document setting out facts the local authority say it can prove that show the child was at risk of significant harm when this court case began and it is for them to prove. If facts are in dispute in family cases then I must resolve them using the civil standard of proof which means more likely than not, or the balance of probabilities. If a fact is not proved it has not happened. I need to take into account all of the evidence, the whole wider picture , to carefully consider who is telling the truth and also consider that sometimes witnesses may not tell the truth about one or more things due to shame or embarrassment when other parts of their evidence are true.
12. In deciding if the facts in the threshold document are true I am not bound to consider only what is written in it. In my assessment what the Children's Guardian said in her report about the grandparents was accurate, she said, "I suspect both have become physically and emotionally overwhelmed by the task of caring for A.". They themselves agree their health is not as good as it was and the disputes and litigation have effected them. The social workers initial statement said, "the local authority believe that the restrictions that their emotional health appears to place on their parenting capacity, has placed A at significant risk." I will explain how I have come to share these views, but also that I am able to make some factual conclusions that the child was at risk of significant harm due to the parenting she was being given by her carers. At the same time I fully recognise the loving family life she has had and has with them and the serious commitment this has needed from them.
13. I am however not satisfied that there has been direct evidence to prove to the civil standard many of the disputed factual matters the local authority relies on. I have read grandparents response to the latest threshold which sets out common sense responses which in general are self-evidently right. For example

a. The child being aware her carer is tired- this is not inherently harmful

b. Their requests for respite which the social worker I heard from confirmed were ordinary with a child with such complex needs

c. I am not persuaded the decision by Grandmother to have and then to cancel respite care suddenly on one occasion can have been harmful to the child – it evidenced other matters however

14. I do however find

a. Their difficult and confrontational relationship with professionals save for Dr T in recent times has undermined the care that the child should receive and been obvious in front of her. For a child with such serious medical needs undermining medical advice is in itself harmful. Dr T I find plainly was given a misleading picture from the grandparents about the support the family were then receiving.

b. They have not in fact complied with the recommended physiotherapy regime, they accept themselves in part, and more recently I find this led directly to the child having to return to hospital for in patient therapy after her spinal surgery. The evidence is sufficiently clear that while at a respite centre before Christmas the child was able to sit up but when at home following discharge her condition deteriorated and I can and must infer this has to be as a result of the care she received at home.

c. Their insistence now that the child determines what physiotherapy and stretching she is comfortable with is not following recommended medical care and results in inconsistent medical support for a child who needs consistent care. When not receiving the physical therapies she needs the child in fact suffers physical effects

d. Refusing to agree to the child going on a school trip – asserting no risk assessment had been completed when school cared for her every day, and I am confident had risk assessed the trip - was emotionally harmful particularly when combined with wrongly telling the child it was schools fault. This is part of a theme of undermining professionals with the child which for a child with such severe and complex needs is harmful

e. It is self evident that on the two occasions when Grandmother has pronounced the child is too much for her and requested accommodation the effects of this on the child would be harmful. Grandmother explained one occasion of this as in effect to make a point to social services which concerns me.

f. Observation of the extreme anger and stress that Grandmother expresses related to the care of the child I find must be emotionally harmful and despite advice has continued

g. In addition the improvements needed to make the child's life easier at home in terms of manoeuvring her wheelchair have not been completed as the grandparents have been unwilling to commit to staying in the accommodation they reside in now for a further five years. This has caused harmful delays to meeting her needs and I am not satisfied they would or could agree to the changes needed. I cannot accept this is as a result of failures by professionals to complete the necessary assessments

15. I am able to make these findings based on the evidence I have read and heard. This does include the evidence of Dr W , a consultant paediatrician responsible for the child's care, whose evidence the Grandparents representatives confirmed was unchallenged at a previous hearing. They changed their minds about this but given Dr W was practically unable to attend and their previous admission I did not consider it fair to adjourn the case for her to attend and also consider I am entitled to take into account her evidence in full.
16. What she says is supported by the Team Manager who gave evidence in support of the social worker who has been unwell for a period and unable to come to court, and by the Children's Guardian both of whom had considerable dealings with the Grandparents. It was also supported by the Grandmothers evidence and questioning in court.
17. The team manager had seen the child recently and noted the considerable progress she had made in personal independence since being under an interim care order and living elsewhere. He described she was more out of her shell, more confident, asks to do activities and very strong minded. He considers her quite a clever girl. He had discussed physiotherapy relatively recently with Grandparents and they were still insisting it caused her harm and not prepared to accept advice.
18. He told the court the child had said she would love to visit and have a meal with her Grandparents and he hoped this would be possible, and unsupervised visits including day trips out could happen.
19. Cross examined by the grandparents he accepted their care had been good enough and respite they asked for was ordinary. It is unfortunate then in the difficult circumstances of this case that grandparents had been accused of over use of this. He accepted decisions they made about use of one respite place and concerns expressed on one occasion about an agency worker were child focussed - but it was clear from the questioning this remained a general complaint of Grandmother, as did an issue about personal independence payments.. He accepted this issue had been dealt with too slowly. He also told me that contact since proceedings had gone well.
20. He told the court that Grandmother could lose her temper and be verbally aggressive at meetings and wouldn't allow professionals to speak which prevented agreeing plans. I considered he was a careful witness, who admitted shortcomings when he should but properly focussed on the child and her needs. He found their criticisms of the current social worker impossible to accept noting how close she and the child were and how devoted to the child's needs she was. When there was any dispute between what he said and the grandparents I preferred his measured accounts.
21. There is a large medical team that has supported the care and medical needs of this child for some years. The report of Dr W deals comprehensively with her health and care needs. I note from this concerns about her using nappies still and missed physio therapy appointments leading to withdrawal of the service because of Grandmothers allegations the sessions made her ill, which was not supported by medical professionals. Despite Dr W's encouragement to allow regular stretching she found resistance to this advice. The Dr advised in relation to physio and stretching "as much as she can tolerate" as this reduced pain and stiffness.
22. Noticeably in this recent hospital admission where she had regular therapy she was able to sit up unassisted for up to 6 hours. She was meant to be having physiotherapy prior to her spinal surgery and Grandparents refused to follow advice about this ( as recorded in minutes of case conference)
23. While Grandmother complained she hadn't got the proper equipment she needed I conclude this was not quite accurate as the evidence showed she had not been willing to make the commitment ( to stay at this home for 5 years) which would enable adaptations of the bathroom to be made to improve the child's independence. At home her mobility is significantly limited in contrast for example to respite at the respite centre where the child loves to be involved in activities and games. I find the home could have been adapted to enable the electric wheelchair to be used there if grandmother had agreed to it.
24. Notably it is clear Grandmother is convinced that medical negligence had resulted in the child's hip problems , which I conclude is not supported by medical evidence, and said in a rather hostile way. Her unhappiness with services and expressions of exhaustion with her caring role were expressed in front of the child. Both school and the social worker Ms Q reported in written recordings the accuracy of which I accept observing the child visibly upset about the situation and had witnessed her being present when her Grandmother expressed anger and hostility to professionals including school. My own observations would support this as being likely. She is aware of her Grandmothers exhaustion she has said. It is plain that the stress of care has had a serious effect on grandmother who told me she felt she needed counselling, which I would hope she can arrange through her GP.
25. It was the repeated theme of grandparents that they hadn't received the right support or enough support and both have expressed resentment and anger about this. As carers they were entitled to an assessment of their own needs but I can see from meeting minutes they have been unwilling to pursue this.
26. They have made serious complaints about the social worker, who the Guardian told me she respected and felt was a child centred professional who appeared to have a lovely relationship with the child.
27. Grandmother had been unwilling to accept school work for the child when at home after surgery, written records show and I accept. School reported a difficult and confrontational relationship had developed over recent years and concern about the child's awareness of Grandmothers anger and exhaustion. This is a huge contrast from the way that they had been able to work together in the past I am aware
28. It is not surprising I think that social workers had hoped the Grandparents might agree to a psychological assessment as they wanted to see if barriers to working together might be reduced but the Grandparents did not feel able to agree. I am confident any psychologist would agree that Grandmother needs some support for herself as living with the kind of anger she has is exhausting and plainly there is evidence that all of this has put her marriage under some strain as at one point she had announced she planned to separate. I am also sure for both of them, without their own transport, the management of the care of this child was a considerable and tiring commitment.
29. I was told about the education and health plan which Grandmother refused to sign. She told me this was because it was a draft and on a computer but the result of her actions was delay for the child, yet she blames professionals for it. The nurses reported in their visit to her about this she was very confrontational, recording them, which unsurprisingly made them uncomfortable and she admitted and she told me she would not sign anything on a computer. I conclude having heard her about this that by this time her anger prevented her from concentrating on proper steps to improve the child's well being. The way she has behaved to people trying to help has often been rude and unpleasant, in part reflecting her distress and exhaustion I think. I saw evidence of this from her own oral evidence and the records I have read.
30. While she states she wishes to resume care of the child I think mature reflection might lead her to consider it has been so overwhelming that it has exhausted her personal resources. She has acted in the forceful way that many carers of disabled children need to do but somehow l felt lost perspective on the way.
31. I accepted her oral evidence that the child's well rounded presentation is not down to luck but to the quality of care she has received. However she was wrong in describing a good relationship with school since this has not been what they have reported more recently. She said to me, "if fully supported as the law requires we could provide a home." She accepted she did at times reach breaking point. She told me the local authority had refused to provide transport and funds for after school activities but of course they were paid disability living allowance to meet travel and care costs and it is not obvious to me that such support is a legal requirement.
32. When asked what support she felt was needed she said money to take her out and about and to hospital , a shower adapted, a new social worker, work with continence services, and ability to go on outings such as the zoo, a museum etc. She felt the social worker had bossed them about rather than discussing plans but I felt from observing her behaviour in court discussion would be difficult if it was anything she had a strong opinion about. Of course I haven't heard from the social worker but I feel I can accept the Guardians assessment of her rather than Grandmothers.
33. Grandmother said " we are not treated as equals"; they "treat us as Grandparents not special Guardians" suggesting the difficulties that arose in part due to what she perceived as a lack of respect.
34. Discussing the need for more space and assistance in the house I felt the circularity of arguments that must have gone on . Grandmother couldn't accept that there was a need as there had not been on occupational therapy assessment. The social workers professional assessment was not good enough for her. There could be no further assessment unless they were prepared to say they would live there for 5 more years and they were not prepared to do that. I preferred the social workers records about this to what Grandmother said. She was over willing to accuse professionals who note down records of lying, not just the social worker but the head teacher too and I preferred their calmer recordings to her own version of events. Grandfather relied on the evidence of his wife who he supported.
35. I heard too from the Children's Guardian who had written a detailed report and gave helpful child focussed evidence. She feels the child would be best in a family home but if not available the local authority should in effect consider a tailor made unit for her so that she could have parenting provided. Her carers need to promote her independence while advocating for her, in a building that has space for her to access and hoist she can use to toilet herself, plus space to store her equipment.
36. She had been concerned at how things had deteriorated – having once sat up regularly then the child wasn't doing so and she noted now the child is more mobile she is in less pain. This deterioration had been in her assessment the direct effect of the care received by her Grandparents.
37. For the child she felt letting go of the responsibility she considers the child feels for the welfare of her Grandmother particularly was helpful. While Grandparents love was genuine and difficulties not intentional she felt the difficulties she observed were serious ones. She felt it was a shame and while it ought to be possible to work with the obvious strengths of Grandparents considered it was obvious the caring task was too overwhelming for them
38. While she found Grandparents polite and helpful herself she had been present at a social work meeting which was very difficult and observed professionals doing their very best to prevent that. The issue for her was that a whole range of professionals recorded difficulties.
39. She considered the results of this was that the child would minimise her needs so as not to cause Grandmother more distress and this was harmful- I agree .
40. I accept her obvious conclusions
41. In addition she agreed the child should be able to continue her new relationship with her Father which in reality only restarted due to these proceedings, it having been reported by the child that her Grandmother would not allow it. Despite the Mothers difficulties it also appeared there were some difficulties in meeting the child's expressed wishes about seeing her
42. I have therefore considered whether the grandparents are now in a position to work with professionals and follow professional advice and commit to the long term to enable their home to be adapted or a new suitable one found for them. Having heard in details from grandmother and read and considered all the evidence I am afraid I cannot accept they could do so. I do not feel a new social worker would make the difference needed given that everyone else is finding similar problems, and to repeat my earlier assessment do think the task of care has now become one that is just too much.
43. As a result I have concluded that the child's welfare demands that social services share parental responsibility with her parents, the parental responsibility of Grandparents having been extinguished once the interim care order was made, and that social services should determine where she lives. I do so because of the risk of further physical and emotional harm. I consider the capacity of Grandparents to care for her has become limited.
44. It is notable the child is not demanding return but she is wanting some ordinary time to spend with them and I see no reason why that could not happen straight away, though the cost of trips and transport would now all have to be met by social services.
45. This is a proportionate interference with the family life she has enjoyed up to now with her Grandparents, because of the risk of harm were she returned, but it will allow a continuing relationship in circumstances in which I hope the stress they have been under will be reduced by the end of these proceedings.
46. I am sorry this judgement will be difficult for them to hear and read since I admire their commitment to their granddaughter, and feel that until more recently their battle for her needs to be met was a proper and helpful one. Instead of the difficulties more recently my hope is that they can now be committed grandparents in the ordinary way, spending time with her regularly on visits, outings and having her for meals at their home which I am confident she would love. Their anxiety for her and hers for them will be relieved I think and make this loving relationship easier in the long run.
47. She will also be able to enjoy relationships with her wider family. Her grandparents will remain most important to her and I hope they can remain as committed to her in care as they have been throughout her life.
48. As a result I approve the local authority's care plan

Her Honour Judge Williscroft

11th August 2017