No. MA237/14
Neutral Citation Number: [2015] EWHC 2509 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Friday, 22nd May 2015
Before:

MR. JUSTICE HAYDEN
(In Private)
- - - - - - - - - - - - - - - -

B E T W E E N :

RY	Applicant

-  and  -

SOUTHEND BOROUGH COUNCIL	Respondent

- - - - - - - - - - - - - - - -

Transcribed by BEVERLEY F. NUNNERY & CO.
(a trading name of Opus 2 International Limited)
Official Court Reporters and Audio Transcribers
One Quality Court, Chancery Lane, London WC2A 1HR
Tel:  020 7831 5627     Fax:  020 7831 7737
info@beverleynunnery.com

- - - - - - - - - - - - - - - -

MR. J. TUGHAN QC  and  MS. S. BRADLEY  appeared on behalf of the Applicant.

MS. F. HEATON QC and  MR. S. SPENCER appeared on behalf of the Respondent.

MS. J. WALKER appeared on behalf of the Guardian.

- - - - - - - - - - - - - - - -

J U D G M E N T
J U D G M E N T
(For revision)

(Transcript prepared without the aid of documentation)

MR. JUSTICE HAYDEN: 

1	This hearing has concentrated predominantly on factual inquiry.  As such and inevitably the focus has been on the adults and not on the child.  It is important to redress that balance and to return this child to the centre of the process to re‑emphasise that it is she who is the court’s paramount consideration.

2	SL was born on 13 December 2012.  Complications with her mother’s labour had been anticipated and delivery had been planned to be by way of Caesarean section.  In the event, the mother was admitted to hospital by ambulance due to reduced foetal movement and spontaneous onset of labour.

3	At birth SL was pale, floppy and had no respiratory effort or heart rate and required intensive resuscitation.  Her first gasp was not until 20 minutes into life.  Dr. Daniel Mattison, Consultant Paediatrician, identifies that SL had experienced hypoxic-ischaemic encephalopathy.  This can result in a wide spectrum of disability and in SL’s case she has been left with a raft of problems.  Firstly, quadriplegic cerebral palsy, which means that she has impaired movement and stiffness of all her limbs as a direct result of brain damage to the parts of the brain involved in movement, tone and posture.  

4	Secondly, she has global developmental impairment.  Thirdly, she has gastro‑oesophageal reflux disease.  That is a condition where the stomach contents pass into the oesophagus causing symptoms.  The stomach contents are acidic so the symptoms include pain from the acidic contents coming into contact with the oesophagus and the throat.  They also include vomiting, feeding difficulties and respiratory problems if the stomach contents irritate the top of the windpipe or if small amounts enter the lungs.  Gastro‑oesophageal reflux disease is more common and may be more severe in children with severe neuro‑disability like SL.  

5	Finally, Dr. Mattison considers that there is visual impairment as a result of the deprivation of blood and oxygen to those parts of the brain involved in vision.

6	In the course of this hearing, I have seen a good many photographs of SL and video clips.  I am very pleased to have been given the opportunity to see them for neither the papers nor the oral evidence give the complete picture of SL as she is.  That material centres, as is perhaps inevitable, on SL’s difficulties and health challenges.  The videos and photographs reveal a little girl who is bright, curious, who has her own sense of fun and who is full of character.

7	There are two applications before me, the first is an application to adopt SL brought by RY issued on 10 September 2014.  The second is an application brought by Southend Borough Council seeking the return of SL as a child placed for adoption back into their care.  That notice, pursuant to s.35 sub‑section (2) of the Adoption and Children Act 2002 was served on 6 February 2015 and is, therefore, the second in time.  In fact, by agreement, SL has been returned to foster care in the interim and there remains.  

8	SL was placed with her prospective adoptive parent, RY, on 24 March 2014.  The assessment of RY undertaken by Trafford Borough Council has been filed within these proceedings.  In a passage within that assessment headed “Social Work Analysis”, Ms. Annie Childs, the author of the report, observes as follows: ^

“RY has considerable experience of being with and looking after children with disabilities.  This experience has been accumulated over many years.  She also has a clear perception that children with disabilities are children first and foremost and are entitled to the same opportunities as others to play, learn, develop and enjoy life.  However, she is also aware of the increased vulnerability of disabled children who may find it hard to communicate or to understand and she has given thought to how her child could be assisted in understanding their circumstances and history most appropriately and in communicating their wishes”.  

9	Ms. Childs goes on to add:  

“She has a realistic appreciation of the changes which adoption will bring and has made the point that there is very little in her life which cannot be altered to accommodate a placement.  She is not in paid employment and could therefore be available for her child almost full‑time.  She is expecting parenthood to be challenging and has prepared for this to the best of her ability”.

10	RY is herself also a person with disability.  The assessment addresses these as follows:  

“RY’s own health became a much more dominant factor as she moved from primary to secondary school.  She was diagnosed in 2006 with Ehlers‑Danlos Syndrome, a condition which typically develops during puberty as the body enters a rapid growth phase.  As a younger child RY recalls that she was rather clumsy and not very well co‑ordinated, but she had not had any problems with mobility as such.  At the age of 12 she started to have pain in her joints but this was put down to ‘growing pains’.  The pain grew worse over time and affected her mobility.  She struggled to keep up with her peers, especially as her school was situated on a very large campus and classrooms were often far apart.  No cause was found for her difficulties.  RY’s mother thought her problems might be emotional as she was being bullied at school.  She was referred for physiotherapy which caused her more pain.  At the age of 15, RY refused any more physiotherapy as it was so painful.  

At 16 she bought herself a walking stick.  Life was difficult at this time.  Although RY was in frequent and in severe pain no condition had been diagnosed and her parents thought her condition might be psychosomatic.  RY told me that she had begun to wonder the same thing herself.  

It was when she left home to go to the Royal Northern College of Music that RY realised how much her parents had been doing for her and how much she was struggling to cope with day‑to‑day tasks like washing and shopping.  She asked for a wheelchair assessment in her first year.  Because of her contact with her friend Katie and other young disabled people, RY had no reservations about using a wheelchair and saw it as a positive option for getting around more quickly and without pain and very preferable to walking laboriously with two sticks.  When she first told her mother she had a wheelchair, Deborah thought RY was ‘mad’ as she still did not have a diagnosis”.  

11	During the course of the assessment, RY wrote her own short account of the impact of her disability on her day‑to‑day life.  I repeat it in full:  

“Normal life.  So what does this mean for me now at 28 years of age?  The really really obvious bit is that I use a wheelchair.  Those wobbly joints, my hips, knees and ankles, are just too wobbly for walking on.  They are so wobbly that the weight pressure does not get shared through the middle of the joint like it’s meant to, so trying to stand up is also extremely painful.  

I’ve had a power chair since 2006 and have been a power chair user full‑time, my only way of getting around, since late 2007.  Now I weigh around 80 kilograms and while my arms are pretty strong, before I had my power chair I was self‑propelling a manual wheelchair, before that I was walking with crutches and heaving myself upstairs, they are not strong enough given that general wobbliness along with a shoulder damaged in a rather nasty fall in 2007 to support my body enough to transfer myself.  Transferring means moving from one place to another, wheelchair to sofa to loo to bed, so I do my transfers using a hoist which lifts me by means of a fabric sling that I sit on.  I have hoists fitted in my house.  

I know the location of every public loo within a 15‑mile radius.  The Changing Places Campaign details these and I have an excellent relationship with a company who can deliver one for hire pretty much anywhere in the country within four hours’ notice so that going on holiday is no problem.  The hoist in my house is set up so that I can use it easily myself without any help even to hoist other people.  A good hoist setup means that even a very big, heavy and totally physically dependent person can transfer safely without a care giver needing to apply any strength to the situation at all.  

Using a power chair means that some practical things are unreasonably difficulty or energy inefficient for me.  For example, changing the sheets on a bed, scrubbing the loo, hanging out washing or chopping a big mountain of vegetables for dinner.  Luckily I have support from personal assistants so I can ‘delegate’ those jobs which leave me with a lot of time and energy which can all be dedicated to caring for a child.  Consequently, I would actually be far more available to a child with a high level of support need than any other single parent would be.  

All the direct hands‑on tasks of physically caring for a child are relatively easy for me or at least no harder than they are for anyone else as far as I can tell.  The things I need support with are peripheral, practical tasks which exist outside the parent‑child relationship.  Cooking is a good example.  I’ll look in the fridge, decide what I’d like to cook, ask my PA to chop the veg and any other really physical jobs and then take over with stirring tasting and seasoning.  Or sometimes I’m just doing the deciding and none of the hands‑on stuff.  I call this cooking by proxy.  I really like trying new things and making food from scratch.  I am vegetarian but would happily cook meat and fish for a child who needed it or asked for it once they were old enough.  

The EDS also affects a couple of other things.  My swallow is a little bit out of whack which makes drinking enough to be well hydrated quite hard work.  Because of this I have a back‑up option, a little tube that goes straight into my stomach called a gastrostomy tube or a PEG tube.  This really has no bearing at all on the rest of my life, it’s just there.  I use it when I need to and as a result I am always in as good a shape physically as I can possibly be.  I also use my tube to take medication, not having to taste it is a bonus.  Nobody would know my tube was there unless I told them.  

Just as my swallow is that bit out of whack, so is the mechanism by which most people urinate.  As a result of this I have got a super-pubic catheter that’s another soft little tube which goes through a hole low down on my belly into my bladder.  Again nobody knows it’s there unless I tell them and it has no bearing at all on the rest of my life except for the very useful side effect of making me need to worry a lot less about where the nearest toilet with a hoist is.  I don’t tend to tell people that I’ve got a gastrostomy tube or a super-pubic catheter, there’s no good reason for anyone except my GP to know and the district nurses who would give me back‑up if I was having some sort of problem.  They don’t affect what I do in day‑to‑day life at all nor would they affect my parenting except possibly to give me slightly more capacity than most.  

I was diagnosed with Asperger’s syndrome as an unhappy home‑sick 19‑year old struggling to keep up with sorting myself out at college.  The diagnosis stands, but under other circumstances I would never have been diagnosed as any difficulties relating to it are so mild as to be undetectable.  People are usually very surprised when I tell them about this diagnosis, but again I genuinely have no reason to.  I don’t believe that it really affects my interactions with other people”.

12	This account - and in particular the assessment report more generally - poses a number of questions.  Most importantly, it does not address RY’s capacity physically to parent a disabled youngster as the child got older and heavier.  It also has to be said that the possibility that RY’s health difficulties might have a psychological component were evident.  It is easy, of course, to be wise with the benefit of hindsight, but nonetheless it seems to me that the enquiries made into RY’s physical and mental health were less than satisfactory.

13	A number of reports were requested, including one from RY’s general practitioner and rheumatologist, but the nature of that enquiry appears to have been very limited and as RY on her own account has had very little recent contact with either in recent years, it is not surprising that little constructive information was forthcoming.

14	Ms. Frances Heaton QC and Mr. Shaun Spencer, who appear on behalf of Southend Borough Council, absorb this criticism without demure.  In their closing submissions they state as follows: ^ 

“With regard to its own failure to consider these records, the adoption agency is cognisant of the fact that although not signposted in the regulations, a review of RY’s medical records is likely to have been beneficial during the adoption process”.  

15	They continue:  
“Where an adoption agency has referred a proposed placement to the adoption panel, the panel must consider the proposed placement and make a recommendation to the agency as to whether the child should be placed for adoption with that particular prospective adopter pursuant to regulation 32(1) of the Adoption Act Regulations 2005.  

In considering what recommendation to make the panel, (1), must have regard to the statutory duties imposed on the agency; (2), must consider and take into account all information and reports ^ passage of it; (3), may request the agency to obtain any other relevant information which the Panel considers necessary; and (4), may obtain legal advice as it considers necessary in relation to the case.  Thereafter, in coming to a decision about whether a child should be placed for adoption with a particular prospective adopter, the agency decision maker must take into account the recommendation of the adoption panel and have regard to the child’s continuing welfare, pursuant to regulation 34(4) of the Adoption Act Regulations 2005”.  

16	Ms. Heaton and Mr. Spencer also identified the most recent Department of Education Statutory Guidance on Adoption, July 2013, drawing my attention particularly to para.4.15, which states:  

“Agencies have a duty to satisfy themselves that prospective adopters have a reasonable expectation of continuing to enjoy good health.  The medical adviser should explain and interpret health information from the prospective adopter, their GP, and consultants if relevant, to facilitate panel discussion.  The opinion of the prospective adopter’s GP and the agency’s medical adviser about the health status of the prospective adopter needs to be given sufficient weight by adoption panels and agency decision-makers.  Mild chronic conditions are unlikely to preclude people from adopting, provided that the condition does not place the child at risk through an inability to protect the child from commonplace hazards or limit them in providing children with a range of beneficial experiences and opportunities.  More severe conditions must raise a question about the suitability of a prospective adopter, but each case will have to be considered on its own facts ...” 

17	Counsel seek to explain the deficiencies of this agency’s process in these terms, they state:  

“The agency appreciates the strength of an argument that it failed to have sufficient regard to the matters required of it both by the regulations and the statutory guidance.  In the context of that argument, the court understands the pressures on agencies quickly to match children with approved adopters as a result of government measures”.  

18	Ms. Heaton and Mr. Spencer say:  

“It is a reality of the situation that adoption agencies are being judged and measured by government departments on the speed of time taken to match children, poor performance leads to penalties”. 

19	They conclude:   

“This adoption agency recognises that these pressures may have resulted in proper scrutiny not being fully implemented in this case.  I am offered reassurance that the agency recognises that a request to consider our wide medical records would have been beneficial to the matching process.  I have been told that they intend to address this failing for the future by ensuring that the agency is more ready to be resistant to pressures and to identify at an early stage those cases which it considers to be exceptional where a ‘longer matching process is required’.”

20	I am also told that it intends to ensure that in cases such as this one, the medical records of the prospective adopter have been and/or are requested and properly considered.  Ms. Walker, who appears on behalf of the Guardian, has been trenchant in her criticisms of this agency’s failure to inspect these obviously pertinent medical records.

21	I am not in any way in any position to evaluate the explanation proffered in the authority’s fulsome explanation.  I was not, for example, aware that government departments were subjected to penalties where there had been too much delay in the time taken to match children, I confine myself entirely to observing what is little more than a statement of that which should be obvious.  

22	Children like SL are profoundly vulnerable.  Social services and society more generally must be sedulous in its protection of them.  The fact that there may be fewer welfare options available for such children must never mean the criteria for matching carers to them can ever be compromised.  On the contrary, the obligations should be seen as even more rigorous.  The matching of  RY to SL was undoubtedly ambitious.

23	RY is, in my assessment as well as in others, a profoundly articulate young woman.  She is confident, eloquent and persuasive.  I have no difficulty in seeing how she would impress in any assessment.  She has acquired with facility the argot of both social work and medicine, albeit not always with accuracy.  I share the Guardian’s misgivings that RY’s own disabilities rendered her unable to meet the range of SL’s physical needs and that the match was, in effect, misconceived from the start.  However, counter‑intuitive though this match was, I am not prepared to say that it was wrong on that basis despite my initial impression to the contrary.  Had it been possible to harness RY’s undoubted strengths constructively, I believe that she could well have been a powerful voice for SL, an effective advocate on her behalf and a loving parent.  

24	The local authority has not pursued its application on this basis.  They were correct in that approach in my judgment.

25	The local authority pursues its application on the basis of six factual premises which it sets out in a Scott Schedule.  Most of these relate to the behaviour and conduct of RY during SL’s hospital admissions, but also more generally to her interactions with health and social care professionals.  The essence of the allegations is that RY has obstructed rather than facilitated SL’s care, that she has been oppositional in her relationships, particularly with medical staff, rather than constructive and collaborative.  This behaviour, the local authority contends, creates a confused clinical environment where mistakes can be made with potentially serious consequences.  Moreover, in “over‑reporting” or “over‑medicalised behaviour” to adopt the terms used by the various witnesses, SL’s own emotional needs are subjugated to whatever RY derives from behaving in such a manner.  

26	At the conclusion of the hearing and in their closing submissions, Ms. Heaton and Mr. Spencer add four further findings which they contend have emerged and been subject to challenge in evidence.  Before I turn to those findings, it is important that I establish the legal framework.  This has not been uncontentious.  Section 35 of the Adoption and Children Act 2002 provides:   

“35  Return of child in other cases
  
(2)	Where a child is placed for adoption by an adoption agency, and the agency –  
(a)	is of the opinion that the child should not remain with the prospective adopters, and 
(b)	gives notice to them of its opinion, the prospective adopters must, not later than the end of the period of seven days beginning with the giving of the notice, return the child to the agency.  

(5)	Where –  
(a) 	an adoption agency gives notice under subsection (2) in respect of a child,  
(b)	before the notice was given, an application for an adoption order (including a Scottish or Northern Irish adoption order), special guardianship order or residence order, or for leave to apply for a special guardianship order or residence order, was made in respect of the child, and 
(c)	the application (and, in a case where leave is given on an application to apply for a special guardianship order or residence order, the application for the order) has not been disposed of, prospective adopters are not required by virtue of the notice to return the child to the agency unless the court so orders”.

27	In the case of DL and ML and the Newham LBC and the Secretary of State for Education [2011] EWHC 1127 (Admin), Mr. Justice Charles heard a claim, brought by way of a judicial review, challenging a local authority’s decision‑making processes pursuant to s.35 subsection (2).  The claim itself centred upon human rights arguments.  Significantly Charles J analysed that s.35(2) of the Adoption and Children Act 2002 was not incompatible with Art.6 and 8 of the European Convention on Human Rights.  He felt able so to conclude, having reasoned that the application of s.35 of the Act required the application of s.1 of the Act, the welfare check list.  Section 1 of the Adoption and Children Act 2002 provides:  

“1	Considerations applying to the exercise of powers 
 
(1)  	This section applies whenever a court or adoption agency is coming to a decision relating to the adoption of a child.  
(2)  	The paramount consideration of the court or adoption agency must be the child’s welfare, throughout his life.  
(3)  	The court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child’s welfare.  
(4)  	The court or adoption agency must have regard to the following matters (among others) –  
(a)  	the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding),  
(b)  	the child’s particular needs,  
(c)  	the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person, 
(d)  	the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant,  
(e)  	any harm (within the meaning of the Children Act 1989 (c.41)) which the child has suffered or is at risk of suffering,  
(f)  	the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including –
(i)  	the likelihood of any such relationship continuing and the value to the child of its doing so, 
(ii)  	the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to met the child’s needs,  
(iii)  	the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.  
(7)	In this section, ‘coming to a decision relating to the adoption of a child’, in relation to a court, includes –  
(a)	coming to a decision in any proceedings where the orders that might be made by the court include an adoption order (or the revocation of such an order), a placement order (or the revocation of such an order) or an order under section 26 (or the revocation or variation of such an order),  
(b)	coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an adoption agency or individual under this Act,
but does not include coming to a decision about granting leave in any other circumstances”.  

28	Accordingly, whether I am considering, therefore, the rationality or reasonableness of the local authority’s application under s.35 or RY’s application to adopt, the s.1 Adoption and Children Act criteria apply in both cases.  All the advocates agree that RY and SL have a legitimate claim to family life pursuant to Art.8.

29	Mr. Tughan relies on Lebbink v The Netherlands [2004] 2 FLR 463 to establish that proposition.  He also highlights the emphasis given by Charles J to the grant of a Parental Responsibility Order when evaluating whether Art.8 rights are established.  Any prospective adopter gains, of necessity, parental responsibility for the child when the child is placed pursuant to s.25 of the Act.  

“25	Parental responsibility 
 
(1)  	This section applies while –  
(a)  	a child is placed for adoption under section 19 or an adoption agency is authorised to place a child for adoption under that section, or 
(b)  	a placement order is in force in respect of a child.  
(1)  	Parental responsibility for the child is given to the agency concerned.  
(2)  While the child is placed with prospective adopters, parental responsibility is given to them.  
(3)  The agency may determine that the parental responsibility of any parent or guardian, or of prospective adopters, is to be restricted to the extent specified in the determination”.  

30	The Department of Education Statutory Guidance on Adoption states at para.520:  

“When the agency is considering placing a child for adoption with a particular prospective adopter, the agency should consider the extent to which the exercise of the prospective adopter’s parental responsibility for the child should be restricted by the agency while the child is placed.  It may well be appropriate for there to be a gradual ‘shift of power’ so that the prospective adopter comes to have a greater degree of autonomy as the placement progresses, and their confidence and parenting skills develop, bearing in mind that once the adoption order is made they alone will have parental responsibility”.

31	It goes on to state at para.5.22:  

“The proposed arrangements for exercise of parental responsibility will be set out in the adoption placement plan, giving the prospective adopter the opportunity to express their views about them prior to their agreement to the placement.  The arrangements will be subject to review at each review under AAR 36, and any change to the arrangements must be recorded on the amended adoption plan.  Any changes must also be notified to the child (if of sufficient age), the prospective adopter, and any other person the agency considers relevant.  It will be helpful, for example, for the agency to notify the school or education authority of the arrangements in respect of the exercise of parental responsibility with regard to education”.

32	What is contemplated here is the granting of some but not all parental rights.  The focus is on the child with the objective of permitting the prospective adopter to take day‑to‑day decisions in the sphere of health, education, religion, holidays and social activities.  Here this local authority, in common with many others, I am told, issued a standardised pro forma document.

33	In relation to health issues, it permitted RY to consent to emergency medical treatment.  It did not permit her to consent to treatment including operations that require anaesthetic.  It did permit her to take decisions in relation to any prophylactic treatment, including immunisations, decisions in relation to involvement in counselling or therapeutic services, agreement to school medical appointments and decisions in relation to dental treatment.  It also provided for her to have decision making responsibility across a range of issues relating to education, day-care, religion, holidays and contact, had that been relevant.  I need not look at those wider issues and I concentrate entirely, because it is in focus here, on the provisions relating to health.  I have, to say the least, been greatly exercised by them.  They are not to my mind a model of pellucid clarity.

34	There has been much confusion by the professionals as to what the scope and ambit of RY’s parental responsibility powers in fact were.  Having read the document I am not surprised.   This document, particularly if it is, as I am told, issued widely, really requires refinement.  Again I am reassured that Ms. Heaton has this in her sights.  She submits that the adoption agency recognises that on reflection and with the benefit of hindsight, (a recurrent phrase) the use of this local pro forma document was not suited to the facts of this case.  It is now, she says, recognised that what was required - and is likely to be required in cases such as this concerning any child with complex care needs - is “a bespoke s.25 parental responsibility document tailored to the individual circumstances and needs of the child being placed.”

35	She goes on to offer the reassurance that in the light of this acknowledgement this Adoption Agency intends to review its own practices and procedures in relation to the identification of appropriate restriction on parental responsibility and to introduce bespoke PR documents in appropriate cases.  It also intends to raise the issue with the British Association of Adoption and Fostering so that other adoption agencies may benefit from learning from the experience of this case.  I would add to that my own view that the standardised document is itself lacking in clarity.  The first two requirements permitting consent for emergency treatment and refusing to bestow consent to treatment including operations are not immediately capable of easy reconciliation and generate, to my mind, inevitable confusion.  As I have said, they require some refinement though, of course, I recognise, in many cases, issues such as this will simply not arise.

36	I have not found it necessary to determine whether RY deliberately over‑stepped or misrepresented her ‘authority’ under these arrangements.  That, to my mind, is ultimately a deflection from the far more important and substantive issue as to whether RY behaved in the way that the local authority contend she did thereby causing harm or risk of harm to SL.

37	Finally, when considering the legal issues, I deal with Mr. Tughan’s contention that harm within s.1 of the Adoption and Children Act 2002 should be interpreted as “significant harm” in accordance with the jurisprudence interpreting s.31 subsection (2) of the Children Act 1989.

38	As I understand his argument, to do otherwise, it is contended, would be to set the bar for removal of a child lower for a prospective adopter than it would be for a birth parent.  This, he contends, would be unfair and a failure to give appropriate weight to the existence of family life between SL and RY, a right which I have already and unhesitatingly found to have been established.

39	Family life within the expansive context of Art.8 is a very broad spectrum, regulating all kinds of relationships, many of which are not obviously associated with the conventional concept of the family.  Justification for interference on the basis of proportionality will inevitably therefore depend on the complexion of the particular facts, thus a higher test for removal of a child from her parents may be required than in the case of removal from prospective adopters who are still engaged in the process of continuing evaluation and assessment prior to the making of the final adoption order and who have, as I have looked at, not yet been conferred with full Parental Responsibility Orders.

40	In the latter case, the s.1 criteria requires an assessment of the child’s general welfare interests of which “harm” to the child is but one aspect.  The parallel here is not s.31(2) of the Children Act 1989, but s.1(1) of the 1989 Act which uses the word “harm” and not “significant harm”.  In my judgment, such a distinction recognises the qualitative differences in the two situations.  Of course, following the making of an adoption order, the s.31(2) criteria would have to be met coupled, of course, with an evaluation of the welfare check list under section 1(1) in order to justify the removal of a child at that stage.

41	All this said, however, as I have indicated on a number of occasions to Mr. Tughan, I will nonetheless, approach for the purposes of this exercise, the local authority’s s.35 application on the basis that they must establish significant harm, even though I do not interpret the provisions as requiring them so to do.  In my judgment, the distinction between these two concepts, i.e. harm versus significant harm, will to my mind in applications of this kind be almost entirely illusory.

42	I should like to preface my conclusions on the evidence, which I have found I can make relatively succinctly, by making some general observations about the Applicant RY.  I have already recorded that I have found her to be an intelligent and articulate woman.  In her evidence she impressed me as a gifted advocate on behalf of people with disabilities with a mature and developed understanding of the principles of fairness and respect for diversity which underpins society’s objectives to achieve equality.  I also found RY to be full of energy both intellectually and, somewhat surprisingly perhaps, physically too.

43	As I have mentioned, she studied music at a highly respected college of music and although she was unable to complete her degree, receiving instead a Diploma in Higher Education due to her own health difficulties, it is plain that she still enjoys listening to music.  She has much to offer any child in this context and I believe genuinely tried to understand which music SL liked and best responded to in a real attempt actively to promote her day‑to‑day quality of life.  RY, I have heard, reads to SL and believes her to be able to indicate which of familiar stories she wishes to have read to her.  

44	The observations of RY’s contact have all been positive and, on the video extracts I have been shown, I see a young woman who has a natural gift for entertaining and stimulating a child.  She has the confidence and capacity to assert herself which no doubt comes in large measure from the love and support she receives from her parents. 

45	RY’s parents have been present in court throughout this hearing and at every day of the hearing.  I have no doubt that they have become deeply emotionally attached to SL.  It is also particularly obvious, if I may say so, that RY’s father dotes on her.  He made, for example, a contribution of several thousand pounds to enable her to purchase her power chair which she would not have been able to acquire from the NHS.  I have watched him nodding with agreement as his daughter gave her evidence and the pleasure and pride he obviously takes in her ability to defend herself in the face of challenging cross‑examination.  As I will amplify below, some of RY’s answers were, in fact, profoundly troubling, revealing a very distorted perspective on the world.  I saw no recognition of that in her father who I have observed closely, though neither parent was called to give evidence.

46	RY’s mother, by contrast, has been a study in inscrutability.  Supportive of her daughter’s application, she has listened to the evidence with her head down.  The papers reveal that in the past Mrs. M has shown a healthy scepticism concerning her daughter’s pre‑occupation with her own health and mobility issues.  She has, as we have seen, described her daughter’s initial purchase of a manual wheelchair for herself whilst at college as ‘mad’.  She plainly shared the doctor’s view at that time that RY was “making things up”.  RY’s decision to buy herself a walking stick when only 16 also led her parents to believe her symptoms were psychosomatic.  It may be that these anxieties have all been allayed for the parents by the diagnosis of Ehlers‑Danlos Syndrome, but objectively concerns must remain.  

47	The doctors treating SL have once again insinuated that RY’s own presentation is clinically unusual.  For my part, I am entirely unclear whether RY’s doctors know that her PEG device is largely unused and that she eats healthily orally as she told me in evidence.  I have not found her account to professionals on this to be consistent.  I am also concerned that RY does not appear to have any proactive review of her own pain relief medication which is a slow‑release morphine‑based product that has been in place for several years.  In the context of what I regret to find to be RY’s repeated manipulative and highly dangerous attempts to acquire sedation for SL, I find the broader canvas of her own medication regime further to elevate concern.

48	RY’s case has, if I may say so, been presented with sensitivity and skill by Mr. Tughan and Ms. Bradley.  It is a striking feature of the evidence that nothing of the medical records is, in fact, disputed.  Generally, RY’s case involves a different gloss or perspective on what has been said or written, sometimes suggesting that the interpretation of the medical notes is filtered through, to use Mr. Tughan’s phrase, the presence of a particular view of RY’s behaviour and accordingly distorted to support a pre‑conceived judgment of her behaviour.  

49	In some cases, that distorted perspective, driven by a moral panic or a sense of outrage in respect of a child perceived to be at risk, is a real feature in cases involving allegations of this kind.  Here, however, I am absolutely clear that that is not the case.  I have been impressed by the objective, reflective and balanced way in which each of the witnesses called by the local authority has given their respective accounts.  

50	I was particularly impressed by Dr. Mattison, the Consultant Paediatrician.  His evidence was, in my analysis, characterised by a real willingness to engage with the questions put to him in an open, objective and investigative manner.  He struck me at times as almost hoping that the criticisms that he had made of RY could be shown to be unfounded.  They were not.  In a statement, dated 27 October 2014, Dr. Mattison sets out his detailed and evidence based concerns in four and a half pages within his report.  It is, in my judgment, a model of its kind.  In a succinct and focussed way, Dr. Mattison identified all the key issues in the case and his report thereafter proved to be a beacon to guide the other professionals involved.  For this reason, and at risk of overburdening this judgment, I propose to quote from it extensively.  It should serve as a paradigm for others to follow:
 
1. Obstructive Behaviour

a. RY has refused nursing observations on SL on several occasions. Observations include the recording of parameters such as heart rate and blood pressure and are routine in the care of children in hospital.

b. On 20/10/14, RY refused to allow SL to have her medication via the gastrostomy.

c. RY was challenged about her obstructive behaviour (in particular refusing medication by gastrostomy) by her then lead consultant Dr Boon. He explained that RY did not have full parental responsibility and did not have the right to refuse medical treatment for SL. Following this, RY requested a change in consultant. She stated as her reason that Dr Boon had made her feel threatened. Nursing staff were present in that consultation and stated that Dr Boon did not behave in a way which could be interpreted as threatening.

The act of asking to change consultants after being challenged is concerning because RY is putting her own desire to control decisions about SL's care above SL's need for appropriate medical care. Dr Boon arranged for the Patient Advice and Liaison Service (PALS) to meet with RY to discuss her concerns and Faye Taylor (the ward manager) also had two further meetings with RY to allow her the opportunity to make a complaint and fully express the reasons for her request to change consultant. RY did not give any specific reasons for the requested change in these meetings.

d. RY has disputed dietetic feeding regimes despite dieticians and health care professionals taking time to explain why the recommended feed was considered most nutritionally appropriate for SL

e. On a previous admission to hospital, RY discharged SL against medical advice. She stated to healthcare staff during that admission that she had full parental responsibility. This was an incorrect claim and social workers were subsequently alerted and had to explain to RY that this was not the case and she did not have the right to discharge against medical advice.

f. Prior to a previous admission to RMCH, RY refused to allow SL to travel by ambulance despite advice by the attending paramedic.

g. Overall, it has been the experience of medical and nursing staff that RY is frequently obstructive around SL's care making managing SL and communicating with RY extremely challenging

2. Over reporting of medical symptoms and medical needs

a. RY has been witnessed suctioning SL with a frequency that far exceeds her need and to a degree which is likely to cause harm and distress. Children with neurodisability will sometimes struggle to swallow all their oral secretions. This can cause drooling and if severe can risk the saliva going down the windpipe causing respiratory problems. Being unwell, particularly with a respiratory illness, or being very distressed can increase children's oral secretions. It is not unusual for children with SL' s level of disability to require some oral suctioning particularly if unwell.

Suctioning consists of placing a suction catheter a short distance into the mouth to suck out secretions. RY has been taught by community staff to do this when needed at home. In hospital, RY has been witnessed suctioning SL very frequently (many dozens of times a day) She has also been seen to place the suction catheter deeply into the mouth and nose. Excessive suctioning can cause pain and distress to children. It can also stimulate excessive secretions making the situation worse. There is also the possibility that it can interfere with breathing by causing a spasm in the larynx (top of the windpipe) and resulting in low oxygen saturations.

On several occasions, RY has been spoken to by nursing and medical staff to explain that her suctioning technique was inappropriate and that she was suctioning too frequently. On each occasion, RY has refused to accept advice and has responded that suctioning is her job and she has been trained. Community staff have confirmed that they trained RY to suction superficially in the mouth, not in the nose and not to suction deeply, all of which has been observed.

b. RY has reported frequent episodes of low oxygen level in SL and has given oxygen herself several times. For a number of reasons, children with disability will often have brief periods of low oxygen levels. When reported in SL, she had a medical assessment and investigations and monitoring. Following that, it was explained by

c. Medical colleagues to RY that SL's episodes of desaturations were brief, self correcting and not harmful. In the case of episodes of desaturation, it would be appropriate for RY to alert nursing staff who would assess SL and her need for oxygen. It is inappropriate for non-trained parents or carers to give oxygen to a patient. Dr. Boon spoke with RY at the start of his period as lead Consultant to explain that she should not be giving oxygen as she was not qualified to do so. This advice has been repeated by the nursing staff on numerous occasions, but in spite of this RY continued to administer oxygen.

d. In repeated consultations, RY has expressed concerns that SL is not progressing and has numerous medical problems including desaturations, need for suctioning, abdominal pain and vomiting. RY has been preoccupied with the concerns to such an extent that communication with RY about progressing with SL's feed and discharge plans have been extremely challenging and this has led to an unnecessarily prolonged stay in hospital which is not in SL's best interests .. 

In a consultation with myself and SL's dietician on Thursday23/10/14. RY said that she did not want SL to be fed with the feed suggested by the dietician because when she had had it last time, SL had screamed from 20 minutes after the feed had started until it was stopped. She stated that she struggled to get nursing staff to attend when SL was distressed. I suggested a plan that SL have a nurse present for the first hour after the feed was started and again for an hour every time the feed was to be increased to support RY and to assess SL's tolerance of the feed. RY responded that she did not want a nurse present during the feed and attempted several times to refuse the offer of nursing presence during feeds.

RY's inconsistency in describing a problem with the feed and with inadequate nursing staff support but attempting to refuse having nursing staff present is concerning behaviour. In my experience, parents who are worried about their child being in pain or distress are anxious for closer observation to more easily detect and treat their child's distress.

e. During SL's admission, there has been a discrepancy in SL's medical needs judged by nursing and medical staff, compared with RY perception of her needs. On occasions where nursing staff have been with SL for periods of up to 2 hours, SL has been well and not required any intervention. When SL has been in the unsupervised care of RY, RY has reported numerous problems and interventions required.

Since RY has been excluded from the ward. SL has remained well and has received all her feeds and medications by gastrostomy. She has had no abdominal distension or vomiting. Her suction needs have been greatly reduced.

3. Over-medicalised behaviour by RY including discussion of
inappropriate interventions

a. It has been my experience and that of medical colleagues that it has not been possible to have constructive conversations with RY about SL's medical management and discharge plans. RY has repeatedly asked about increased intervention such as a tracheostomy (a tube inserted through the neck into the windpipe to produce a safe airway in children with airway problems) and on another occasion a central line (a tube placed through the skin into a large vein in the chest) for the administration of parenteral nutrition (food directly into the bloodstream for children unable to be fed by the usual route). Neither of these interventions would be appropriate for SL' s current medical needs.

b. Ms RY has also asked about the prospect of SL going home even if she were not able to tolerate her feed. It was clarified with RY that SL needs her feed to live and so going home without being fed would effectively be palliative or end of life care.  RY understood this but repeated the query despite a clear message that SL was not dying and that the medical plan is to build up her feeds and send her home in the near future. In my experience, parents and carers will usually find the topic of end of life care very distressing and it would be unusual for them to attempt to discuss an end of life plan when the child was not seriously unwell or expected to deteriorate or die. This is more unusual still considering that RY has not yet adopted SL and she remains a looked after child.

Summary
From discussions between health professionals who have been involved in SL's care during this admission. I believe that she has suffered harm through the following actions by RY:

1. Inappropriate interventions whilst on suctioning and oxygen administration. the ward i.e. unnecessary frequent

2. Delays in the administration of medications and a failure to establish regular feeding secondary to RY's obstructive and challenging behaviour around the use of SL's gastrostomy.

3. Over reporting of SL's medical condition which does not fit with the objective findings of the medical and nursing teams

4. Delay in the anticipated discharge date for SL, due to the above factors.

51	Dr. Mattison concluded, from the discussions that he had with various of the health professionals involved in SL’s care during the admission to his hospital, that SL had suffered harm in a variety of ways.  Firstly, by RY’s inappropriate interventions whilst on the ward as illustrated by unnecessary frequent suctioning and administration of oxygen.  

52	Secondly, by the delays in the administration of medication and the failure to establish a regular and sufficiently calorific feeding regime as a consequence of  RY’s obstructive and challenging behaviour in respect of the use of SL’s gastrostomy.  

53	Thirdly,  RY’s over‑reporting of SL’s medical conditions which he did not find to accord with the objective findings of the medical and nursing teams.  

54	Fourthly and finally, the delay in the anticipated discharge date for SL from hospital as a consequence of those identified factors.  Dr. Mattison reminded the court that for anybody, but particularly for a young child with respiratory difficulties, extension of time in hospital is potentially seriously injurious.

55	Though the motivation is complex and unclear, the inescapable conclusion is that  RY had for some reason become invested in SL being perceived as more unwell than she, in fact, was.  I do not propose to set out and traverse each of the findings within the local authority’s Scott Schedule for there is an obvious and compelling flaw as Mr. Dale Unwin, the Children’s Guardian, points out.  Even if it were the case that from time to time misunderstandings or confusion arose, for  RY’s case to gain any real forensic traction I have to be prepared to accept that the confusions and differences of perception were endemic and affected a variety of different individuals from diverse professional backgrounds on numerous occasions.  

56	There is, says Mr. Unwin ‑ and I agree ‑ an inescapable pattern of failure to work with professionals and to accept advice.  Even in this, to some extent, RY appears to accept the existence of a problem.  She acknowledges that she is difficult to work with or “not easy” as she puts it.  At the heart of this case is a little girl who needs a carer who is able to liaise and co‑operate proactively and sensitively and in a collaborative way with the wide variety of expertise that SL is likely to have to call on during the course of her life, but RY has been unable to establish any constructive working relationships.  She failed with Dr. Mattison, she failed with Ms. Taylor, the Ward Manager, she failed with Dr. Booth, and she failed with Ms. Deever.  That, says the Guardian, pragmatically really tells its own story without more.

57	Mr. Tughan submits that the essence of RY’s failure is that she was not prepared to subscribe to what he terms a “doctor knows best” approach which is his shorthand for encapsulating the traditional deference that members of the public have at least historically shown to members of the medical profession.  But I was struck in RY’s oral evidence by what I found to be her essentially self‑justifying position, her lack of insight and her alarming and at sometimes really quite shocking dismissal of medical opinion to a degree which simply revealed, as Ms. Walker puts it, “a distorted perception”.  

58	She most certainly did not, as Mr. Tughan suggests in his written submissions, give eloquent evidence that she would behave differently with professionals in the future.  Insofar as she articulated the concept at all, which was minimal, it was wholly unconvincing.  Having combed through the local authority’s Scott Schedules, the factual premises of which are, as I have emphasised, all agreed, I reject in each instance RY’s alternative accounts.  The schedule, excluding her responses, should be annexed to this judgment, but it is only right that I should highlight a number of particular incidents.  

59	The local authority’s schedule posits six findings and four supplemental findings.  The first is that during SL’s hospital admission, which commenced on 26 September 2014, RY repeatedly refused nursing observations such as taking blood pressure or temperature.  The second is that RY repeatedly refused to allow medical advice in relation to SL’s dietetic requirements.  The third is that RY repeatedly stopped or refused medication and treatments.  The fourth is that RY demonstrated an inability consistently to accept medical advice.  The fifth is that RY repeatedly requested treatments of her own motion or insists on treatment methods.  And the sixth is that due to RY’s anxieties, she tends to focus her attention on unnecessary medical procedures or extreme outcomes.

60	The four additions are that RY suctioned SL unnecessarily too vigorously and in an inappropriate manner.  Secondly, that she repeatedly requested sedation medication for SL despite being told by at least two health professionals, Dr. Court and Sally Deever, that such may compromise her breathing.  The third is that RY gave SL oxygen unnecessarily and inappropriately when she was not trained to do.  And fourth, that SL suffered harm in RY’s care and was likely to do so if she were to return to her care.  That last finding being essentially a composite of the earlier allegations.

61	As I have already said, it is really a very striking feature of this case that so much of what is set out in that schedule is factually uncontentious.  It is the gloss or interpretation that is put on it that has become the focus of disagreement during this case.  In, for example, the first finding, namely that during SL’s hospital admission in September 2014 RY repeatedly refused nursing observations, there is agreement that she did indeed make such refusals.  

62	Analysis of the nursing and hospital records shows, for example, that in the period after her discharge from the paediatric intensive care unit,  RY declined to allow nursing staff to take rudimentary tests to ensure that SL was progressing satisfactorily at this particularly important transition, i.e. from intensive care back out onto the ward.   RY’s explanation for this is that she did not want SL to be woken up.  It is, on any view, a self‑evidently unsatisfactory explanation.  Her explanation for declining, for example, the blood pressure test is that she thought it would bruise or mark SL, despite her having received reassurance that it would have no such effect and despite, to my mind, such a proposition being really quite absurd to a woman with the intelligence of  RY.

63	Ms. Fay Taylor told me that what was perhaps most extraordinary about this is that when parents are with children making this significant transition from intensive care onto the ward they are usually extremely eager to have the reassurance that these routine tests can provide, that temperature is all right, that blood pressure is good, that baby is thriving, so actively to block such monitoring struck Ms. Taylor, as it does me, if I may use her word, as ‘bizarre’.  It is, as I have said, difficult to understand why RY would want to do that.

64	In relation to the second finding sought, by way of another example, I wholly understand that in the case of SL’s dietary requirements RY had committed herself to a regimen of pureed food, but for such an important time in SL’s life it was plain that she would need all resources at her disposal and that to do so she would have to be ensured of appropriate calorific intake.

65	RY told me that she derived some satisfaction from the preparation of the food for her daughter that it was instinctive to her to want to do that and that I certainly understand, but as time passed it became all too clear that this preferred method of nutrition not only was unsatisfactory, it was falling manifestly and demonstrably short of meeting SL’s needs.  The doctors and nursing staff and dieticians were plainly highly agitated that SL should have good quality calorific and nutritional food, particularly when recovering from her operation, and RY undoubtedly resisted it in the face of her own obviously inadequate regime long after it would have become obvious to the reasonable carer that this was simply not meeting this little girl’s needs.  

66	So obvious was it that, in circumstances which I really find to be truly extraordinary, the hospital required RY to sign a waiver abdicating their responsibility to her for providing SL’s proper nutrition.  What I find so deeply alarming is that in this instance and in the other instance that I have just looked at, that is to say the failure to let nurses take temperature, blood pressure, routine tests, et cetera, how it was that  RY’s will prevailed to the extent it did.  I can only assume that her behaviour was as described so bizarre that it caused confusion in the ward and led to poor clinical judgments to be taken contrary to SL’s interests.  

67	Ms. Heaton put to RY directly on this point, “In those circumstances, how could RY be said to be putting SL’s interests first?”  And to that, in my judgment, RY had no satisfactory answer.  I simply do not believe that she has understood or is now able fully to understand why it was she behaves in that way, but there is no satisfactory explanation when properly analysed for this failure to meet that most basic of SL’s needs, her need for nutrition.
68	As I have said, I do not find it necessary to work through each of the many examples contended for in the Scott Schedule of, for example, RY’s refusing medication and treatments, chiefly again because it is not disputed.  One such example which stood out to me in the evidence was RY’s refusal to permit SL to take oramorph when moved onto the ward when in the intensive care unit.  Oramorph, I was told, is a morphine‑based medicine the objective of which was to downscale gradually the pain relief from the higher dosage that she hitherto had been receiving.

69	RY told the hospital ‑ and indeed told me ‑ as Ms. Walker emphasises in her closing submissions, that SL “didn’t need anything for break‑through pain”.  It is one of a number of responses that causes Ms. Walker to comment on what she contends to be RY’s arrogance towards medical staff for how, says Ms. Walker, could RY possibly have been in a position to gainsay the medical advice and to assert from the basis of no medical knowledge at all and in a highly specialised area of medicine that this little girl did not need anything for break‑through pain.  Once again it was RY’s wish and not that of the doctors that prevailed.  I agree with Ms. Walker that the evidence in relation to this can properly be described, as she does, “overwhelming”.

70	I would also like to highlight the incident set out in the unchallenged statement of Ms. Leanne Mulholland, who is a Senior Sister at the Paediatric Emergency Department at the Royal Manchester Children’s Hospital.  In her statement of 7 May 2015, Ms. Mulholland tells me that she was the nurse in charge on the early shift of 14 July.  Four areas of concern were handed over to her from the night staff.  

71	Firstly, there was the transfer of SL to the Paediatric Emergency Department in RY’s car directly contrary to the advice of the paramedic.  A process which in and of itself caused a significant delay in admission as Mr. Unwin emphasises as a convenient forensic illustration of harm.  Secondly, on arrival there was concern that RY simply refused initially to allow a full respiratory assessment to be performed.  I am still unclear why that was, but it was ultimately completed as it manifestly needed to be.  There was reported to Sister Mulholland a concern about the ambit of parental responsibility, which I have already looked at.  

72	Then there was the final area of concern; active discharge from the hospital against medical advice.  That RY should do this at all, that she should feel knowledgeable and empowered enough to do it, even before she had been granted the Adoption Order and full parental responsibility, is profoundly troubling.  This episode illustrates to my mind that RY had gone beyond behaviour that was merely capable of being categorised as bizarre but had, in truth, spiralled out of control.  I find her judgment and her behaviour, was irrational, unstable and she had become, I am truly sad to say, a real risk to SL.  There are many illustrations of this, but I must mention just two more.  

73	I accept the evidence of Ms. Sally Deever that RY repeatedly made enquiries to her about sedation for SL, despite being advised of its particular and unique danger in the context of an infant with respiratory difficulty.  In her statement, which was not, undermined by cross‑examination, during the course of which she responded to fair and balanced questions in a moderate and reflective way.  She told me that RY had frequently requested sedation for SL, that she had predicated this upon a great many unsettled nights, as she described it.  Ms. Deever, who is the Service Lead, Special Needs Nursing Service organisation, took, she told me, great care to explain to RY the dangers of sedation to SL.  

74	It follows from everything I have said that RY was more than capable of absorbing that explanation.  Moreover, I am satisfied that was advice that merely reinforced that given by Dr. Court to RY.  I am satisfied that  RY told Ms. Deever that Dr. Court had said that sedation was appropriate, he had not done and this was a dangerous misrepresentation to Ms. Deever which she was experienced enough, thankfully, to resist.  That this was said by RY is illustrated corroboratively by the fact that Ms. Deever immediately contacted Dr. Court to confirm that her approach was right and that it would be unsafe for SL to sedate her.  Conversely, of course, as we have looked at, when prescribed Oramorph leaving intensive care, RY rejected it.  This leads Ms. Walker to speculate that the motivation of RY was to maintain control over all that went on.

75	Finally ‑ and again in an episode which I consider to stand out in the abundant evidence supportive of the local authority’s contended findings ‑ I have seen a printout of RY’s Facebook communications presented during the course of this hearing.  On 15 June, she posted this message:  ^ 

“Anyone else got a tongue biter other than tonic‑clonic seizures?  She had an absolutely horrific afternoon of SL biting her tongue hard over and over screaming in pain, choking on the blood and ultimately panicking.  Really struggling with this one.  I am frightened she is going to maim herself”.

76	On the same day and at 21:20 RY was visited by a Sister Sheehan and there was a discussion about SL, her gastrostomy site, there was an examination of the gastrostomy site and discussion of granulation.  A prescription was given and advice about dressing.  There was no mention whatsoever of that horrific day described on Facebook later that day, after that visit had taken place.

77	The next day there was a home visit by Ms. Deever at RY’s request.  The reason for the request was said to be SL’s biting her tongue and causing bleeding.  Ms. Deever, an experienced special needs nurse she was and is, examined SL, found her to be well and settled with no obvious sign of trauma to her tongue at all.

78	A photograph and video emerged presented to the Guardian during the course of these proceedings.  It showed a bib with a significant amount of blood on it.  Mr. Unwin believed that he was being told that was from this occasion and what Ms. Deever either saw or ought to have seen.  There was also a video illustrating the biting.  Either  RY had retreated from the account that she gave to the Guardian or Mr. Unwin had not got it entirely right.  It is a tribute to his professionalism that he is prepared to countenance the latter.  

79	However, the entries on the medical notes that I have looked at, contrasted with Facebook entries, tell their own stories.  So, too, in my judgment, does the video.  I see nothing on that video to concern me at all.  I certainly see nothing of the complexion described by the mother certainly on that Facebook entry.  That she seems to continue to see something serious on that video represents once again what I think Ms. Walker rightly encapsulates as a distorted perspective.

80	Ultimately, balancing what I have sought to identify as some really clear, captivating and obvious strengths that RY has and balancing those against the harm I have just outlined in summary, does not present to me a remotely delicate balance in determining the future for SL.  The way ahead for her, whatever it may hold, is clear.  The risk RY presents of harm or significant harm to SL is so real and serious and the potential consequences so grave that I find them to be wholly inimical to her welfare.  It points clearly and determinatively in support of the local authority’s application under s.35(2) in effect refusing return to  RY’s care.  It follows, therefore, that I dismiss her application for adoption.

81	In my lay view, RY has plainly some real emotional and psychological issues to address.  I hope she is able to do so.  I hope her family are able to help her to do so.  In the meantime, it would not be safe, in my judgment, for her to be involved in the care of any child or vulnerable adult with disabilities.

82	Post Script

Cases of this kind generate real public concern and rightly so.  In the past a judgment such as this would not have entered the public domain. It is hardly surprising therefore that public understanding of the Family Court process and confidence in it’s system had begun to erode.  The Practice Guidance of the 16th January 2014 was intended to and has achieved immediate and significant change in practice in relation to publication of judgments in the Family Courts and the Court of Protection.  In April 2013 Sir James Munby P issued a statement, View From the President’s Chambers: The Process of Reform, [2013] Fam Law 548 in which he identified transparency as one of three central strands of reform which the Family Justice System is currently undergoing.  This is an ongoing process in which a balance between freedom of expression, protected by Article 10 ECHR and the rights of vulnerable children to privacy and security, protected by Article 8 is often a delicate one.
 
83      In Re C (a child)  [2015] EWCA Civ 500 McFarlane LJ observed:

“24. The third observation I make is that the process that the President is currently engaged in is very much one which is organic and developing. It is not apt, in my view, for the Court of Appeal to intervene and to offer its own guidance, as we are invited to do by Mr Wilkinson, in the course of that process unless it is plain to this court that a judge in a particular case has fallen into an error of principle or is otherwise plainly wrong in the decision that has been given. I am therefore careful in the words that I use in this judgment to say nothing to enlarge upon or contradict the words that the President has carefully chosen to put into his guidance.”

83.	In this case I have made serious findings against a prospective adoptive parent and been critical of the safeguarding procedures within the Adoption Agency.  The Agency has itself been quick to identify the deficiencies in it’s own assessments and, through it’s counsel, Ms. Heaton, has made constructive suggestions in an open and cooperative way.  I raised with all the advocates, at the conclusion of the hearing, the extent to which this judgment should be placed in the public domain.  Ms. Heaton and Ms. Walker both considered that publication, in which the name of the carer was not anonymised was likely to be contrary to the interest of the child and to run an unacceptable risk of disrupting her care.  Because I have been considering the conduct of a prospective adopter and not a parent there is no link to be made to the child by virtue of the surname.  
  
84.	Mr. Tughan, on behalf of the carer, adopted the position advanced by the Local Authority and the Guardian with alacrity.  However, to my mind, those concerns are not well rooted.  I cannot see how the child’s identity would easily become known by the publication of an entirely different and wholly unconnected surname.  Moreover, as I have observed before, I have only positive experiences of media conduct in relation to vulnerable children. 
 
85.	I do however consider RY to be an intensely vulnerable young woman despite her superficially confident and eloquent presentation.  It may be, though I am not confident, that she has developed some understanding of her own dangerous and highly dysfunctional behaviour.  Mr Tughan tells me that there is a real determination, particularly by her parents (who have been present in court throughout) to ensure that she gets speedy access to the psychological and therapeutic help that, in my judgement, she certainly needs.  Publicity, he contends, would be wholly counter to these therapeutic objectives and would be likely seriously to undermine its effectiveness. On the other side of the equation, he submits that nothing of consequence is removed from the public domain by protecting the identity of this perpetrator. The issues themselves are the true import of this judgment. 

86.	In Re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47 [2005] 1 AC 593 Lord Steyn made clear that the foundation of the jurisdiction to restrain publicity is not derived from convention rights under the ECHR.  Lord Steyn also emphasised that previous authorities determined when the appropriate framework had been pursuant to the inherent jurisdiction were likely to remain important in regard to the ultimate balancing exercise to be carried out as between the competing convention rights.  In Re W [2005] EWHC 1564 (Fam) Sir Mark Potter P summarised the effects of Re S as follows:
"There is express approval of the methodology in Campbell in which it was made clear that each Article propounds a fundamental right which there is a pressing social need to protect. Equally, each Article qualifies the right it propounds so far as it may be lawful, necessary, and proportionate to do so in order to accommodate the other. The exercise to be performed is one of parallel analysis in which the starting point is presumptive parity, in that neither Article has precedence over or trumps the other. The exercise of parallel analysis requires the court to examine the justification for interfering with each right and the issue of proportionality is to be considered in respect of each. It is not a mechanical exercise to be decided on the basis of rival generalities. An intense focus on the comparative importance of the specific rights being claimed in the individual cases is necessary before the ultimate balancing test in the terms of proportionality is carried out."
87.	In Clayton v Clayton [2006] EWCA Civ 878 Sir Mark Potter also observed:
“…the observation of Lord Steyn that earlier case law on the inherent jurisdiction of the High Court may be relevant in regard to the balancing exercise to be carried out under the ECHR provisions, applies, because the injunction is sought and granted as part of the court's consideration of a question regarding the upbringing of the child concerned: see s.1 (1) of the 1989 Act. In such a case, the child's welfare, which of course includes respect for his or her privacy free from damaging publicity, is the court's paramount consideration see Re Z (A Minor) (Identification: Restrictions on Publication) [1997] Fam 1 per Ward LJ at 23C-E, 23H-24A, 28B-D, 29D-E and per Sir Thomas Bingham MR at 33B-D. Nonetheless, it does not exclude the necessity for the court to consider (a) the right of the child under Article 8 to privacy, both in relation to the proceedings and the confidentiality of his or her personal data, (b) the right of the parent under Article 10 to tell his or her story to the world and, (c) in the case of an application by media interests, their wish to publish or broadcast the story and/ or to comment on the issues involved.”
88.	I have already expressed my clear view that the link between publication of the identity of the carer and any adverse impact upon the child subject to these proceedings is tenuous.  However, I think RY’s entitlement to the opportunity of therapeutic support, in private, which gives the process much greater prospects of success is so manifestly in both her own interests and those of society more widely that it weighs heavily in the parallel analysis of competing rights and interests in which the starting point is ‘presumptive parity’. 

89.	In my judgement the need to protect RY’s privacy while she embarks on what I have no doubt will be a difficult and challenging therapeutic process is to recognise an important aspect of her own autonomy and dignity.  The point is made succinctly by Lord Hoffman in Campbell v MGN Limited [2004] UKHL 22:
 
“50. What human rights law has done is to identify private information as something worth protecting as an aspect of human autonomy and dignity. And this recognition has raised inescapably the question of why it should be worth protecting against the state but not against a private person. There may of course be justifications for the publication of private information by private persons which would not be available to the state - I have particularly in mind the position of the media, to which I shall return in a moment - but I can see no logical ground for saying that a person should have less protection against a private individual than he would have against the state for the publication of personal information for which there is no justification. Nor, it appears, have any of the other judges who have considered the matter. 

51. The result of these developments has been a shift in the centre of gravity of the action for breach of confidence when it is used as a remedy for the unjustified publication of personal information. It recognises that the incremental changes to which I have referred do not merely extend the duties arising traditionally from a relationship of trust and confidence to a wider range of people. As Sedley LJ observed in a perceptive passage in his judgment in Douglas v Hello! Ltd http://www.bailii.org/ew/cases/EWCA/Civ/2000/353.html[2001] QB 967, 1001, the new approach takes a different view of the underlying value which the law protects. Instead of the cause of action being based upon the duty of good faith applicable to confidential personal information and trade secrets alike, it focuses upon the protection of human autonomy and dignity - the right to control the dissemination of information about one's private life and the right to the esteem and respect of other people.”

90	All this said this particular balancing exercise may have to be revisited if circumstances change, as I indicated to Mr Tughan during the course of submissions.  I do not propose to contemplate what such a change of circumstances might be, preferring to address them if or when they arise.