Friday 27 July 2012

HAYLEY TRIM’S ANALYSIS: DISABLED CHILDREN, THRESHOLD AND THE UNIQUE CASE OF RE K

The case in question was one dealt with by Nigel Priestley, Ridley & Hall Solicitors, Huddersfield

25 APRIL 2012
In the recent case of Re K [2012] EWHC FLR Forthcoming, Hedley J had some very interesting things to say about the role of the court in cases involving disabled children. There is a difficult balance to strike where the risk posed to children is the result of their own condition rather than the standard of care given to them. The local authority has statutory duties towards the child and it is not unusual for tensions to arise between them and the parents as everyone tries to do what they perceive to be the best for the child.

Hedley J observed that cases concerning seriously disabled children do not sit easily or conveniently within Part IV of the Children Act. Legal proceedings can (further) damage relationships between families and professionals and the courts will often have a very limited contribution to make.

One issue is whether the s31 threshold is crossed – significant harm is a risk for severely disabled children that is not necessarily connected to the care they receive. Hedley J grappled with this saying that parents of children in this situation must acknowledge the proper role of medical, education and social care professionals and be open to advice and services. That is not to say that parents should be unduly compliant in accepting advice which may illustrate a lack of commitment to the child, but a refusal to engage with professionals or a rejection of widespread advice may indicate that the threshold is satisfied.

Re K was, in Hedley J’s words, a unique case. Of the five children of the family, three, aged 11, 6 and 3, were severely disabled the elder two of whom were living in a residential care home while the youngest remained at home. The relationship between the local authority and the parents had become embattled and conflicted and the local authority had brought care proceedings. The parents were struggling with their own physical and mental health as a result of the pressures of their situation.

Rather than presiding over a traditional adversarial hearing, the judge allowed the parties much time for discussion and negotiation out of court. He also personally visited the children’s care home and school. The very careful bespoke handling of the case by Hedley J appears to have had the desired effect with agreements being reached in relation to most of the issues. He determined an outstanding issue regarding the education of the older disabled child, agreeing with the local authority that it was in the interest of the child to stay at his current school for now subject to future reviews.

When it came to deciding whether the local authority should be permitted to withdraw care proceedings, Hedley J noted that the court should approach this issue in the following way:
1. Ask itself whether a trial on threshold should be required.
2. If the answer is no, it should consider whether on summary examination it appears unlikely the local authority could prove threshold.
3. If so it should allow withdrawal.
4. If not satisfied that threshold would not be made out, it should consider whether withdrawal is consistent with the interests of the children individually and as a family, and make a decision based on welfare.

Here unsurprisingly the judge did not think there should be a trial on threshold which would risk undoing the progress that had been made. He was not however prepared on a summary basis to say that threshold could not have been made out. Therefore he would consider the application to withdraw on a welfare basis and given the present levels of agreement between the parties, he concluded that withdrawal of the proceedings would promote the welfare of the children.

However, although a care order would have undermined the morale of the parents, there remained a need for a legal framework that would keep the parties on equal terms and make them accountable to the court for the maintenance of a proper working relationship. The judge therefore made the three disabled children wards of court. No orders were made in relation to the other two children.

A further unusual feature of the case was the appointment of an independent case manager. This, said the judge, had to be viewed as unique – it would not be the norm in family proceedings.

Hedley J stresses throughout his judgment that this is a unique case and although he had given to it what some would consider “extravagant” periods of time for reflection, enquiry and negotiation, this had been a family in crisis and there was a real risk that it would not survive. This case was evidently at the extreme end of the spectrum and there is no question of the court taking this approach in every case. But the sensitive handling of the case brought about a successful outcome that all the parties seem to have bought into.  I wonder whether in other cases like this some model of mediation has a role to play. The Family Justice Review recommended piloting mediation in public law cases – perhaps this is an area where it could prove valuable.

Hayley Trim is a Family Law PSL at Jordan Publishing and was formerly a family solicitor practising in London.