NB, Re

These proceedings are concerned with NB, who was born in 1993, and is therefore now 22 years old. The proceedings began as an application by the London Borough of TowerHamlets for authority to remove NB from her family home. At the hearing on 21st and 22nd September 2015 the main issue to be decided was where NB should live for the immediate future, the options being either:

At the conclusion of the hearing late in the afternoon of 22nd September I was invited to give my conclusion on this main issue. I informed the parties, with NB herself present in court, that I considered it in her best interests to remain living at P House while a permanent placement is sought.

Although offered an immediate ‘ex tempore’ explanation of the reasons behind the conclusion, Mr. Anderson on behalf of VW (who is NB’s mother and the First Respondent in these proceedings) asked instead for written judgment.

I have read the following documents:

Most of these documents were collated into a bundle of 3 files for the hearing.

NB was born in Canada. From the age of 6 she was placed into the care of the Local Authority and from September 2007 she attended a residential school in Herefordshire. Family contact was maintained by telephone calls and visits. When she reached 18 in 2011, NB returned to live at the family home in London.

NB has autistic spectrum disorder and a moderate learning disability. Her understanding of and her ability to manage living situations are affected, and she displays challenging behaviour. She is functionally able to complete virtually all personal care tasks, with some prompting and practical support but she tends to adopt set routines, any interruption of which causes her anxiety. Her speech is affected by echolalia and stammering but she is able to write and to make her wishes known. If anxious, or feeling that her wishes have been thwarted, NB may become angry and can grab or strike out at whoever is around her.

NB’s return to living with her family is said to have been managed less well than it should have been and in due course difficulties arose. NB displayed agitation, anxiety and distress; and the family struggled to manage her needs and behaviour.

By COP9 application dated 28th March 2014 (B39) (Footnote: ¹) the London Borough of TowerHamlets applied to the court for authority to remove NB from the family home.

At the first hearing on 29th April 2014, after discussion the parties in fact agreed to work together to support NB’s continued residence at the family home, and further agreed that such co-operation would include the preparation of an amended support plan and consideration of any request for additional support. Various directions were given (B89).

The realisation of the parties’ agreements was interrupted by events and a change of arrangements:

There was a hearing on 28 August 2014. The order made (B108) included

NB moved to LG immediately after the hearing. She did not settle smoothly. In September she made allegations of assault by staff (C204, C212) (which were subsequently withdrawn); and there was some difficulty around contact with VW, involving violence by NB. In October and November 2014 there were incidents when NB was aggressive to the staff, and the police were called. More positively, the Christmas and New Year contact with VW was reported to have gone well.

On 26th February 2015 what was supposed to be a final hearing on the question of where NB should live began before me. The options for the Court to consider were said to be remaining at LG, returning to the family home, or moving to a new placement to be offered by the Hoffman Foundation. It was NB’s very strong wish that she attend this hearing. She stayed throughout and explained to the court herself her wishes and feelings with determination and dignity.

Over the course of oral evidence from Arun Manuel (deputy manager of LG), Nina Ezekiel (social worker) and Keith McKinstrie (Independent Social Worker) it became apparent that there was in reality no clear identification by the Local Authority of an appropriate placement for NB to move to on a permanent basis. The allotted hearing time concluded not with a final order but with further directions intended to secure such information. It was provided that NB was to remain living at LG meanwhile, with specified unsupervised contact arrangements.

By the time the matter came back to Court on 23rd April 2015, NB had been given notice that her placement at LG was to be terminated. Faced with very limited options, the parties agreed “the least worst option:” that, as an interim measure and with careful transitional arrangements, NB should have a ‘shared care’ residential arrangement between her mother’s home and (an untested) residential care home at P House. The Court indicated at the hearing its endorsement of such agreement and the legal representatives agreed to draw up and submit a draft order for approval. Such order was drafted and submitted but never issued because by the time it was referred for approval, matters had again moved on.

Within a few days of the hearing, VW notified the other parties that her circumstances and her intentions had changed and NB could not in fact move to live, even on a shared care basis, with her. VW’s subsequent statement (dated 30th June 2015 – C529) gives her reasons as follows:

So, instead of any shared care arrangements being implemented, on 29th April 2015 NB moved to P House full time. On 15th May (Footnote: ²) an order was made by consent to reflect and authorise this arrangement, and giving further directions for identification of medium and long-term residential options to meet the recommendations of the ISW, Mr. McKinstrie.

The matter came back to court on 7th July for a review hearing. At the request of all parties, NB was told by me that she could not return to her mother’s house; that everybody now agreed she needed special care, and would be looking for a new home for her. An order (B131) was made which provided for assessment of a proposed permanent placement at O Gardens, with directions for transition planning, and for a round table meeting between the parties to consider the conclusions of such assessment. Directions were given for the parties to submit a consent order for consideration if they were able to reach agreement; and in respect of the final hearing if they were not.

On 21st July the Local Authority received notice from P House that NB’s place was being terminated after incidents of challenging behaviour, including property damage (C538). After considerable efforts were made by the Local Authority to address the concerns of the staff and management of P House, the notice was withdrawn. NB has been able to remain living at P House to date.

At the outset of this hearing,

Given this lamentable situation, and the anxiety which all agree that NB is caused by these proceedings, I required the parties to identify and set down in writing such issues as were capable of resolution at the hearing. The agreed list of issues reads as follows:

“1.

whether there is shared care as a long-term solution;

2.

If not, whether pending a log-term placement there is shared care or NB

remains at P House in the interim;

3.

In any event, whether the proceedings continue or not;

4.

If proceedings continue, the directions to be made.”

In addressing those issues, I heard oral evidence from Mr Najoo (the Manager of P House), Nina Ezekiel (NB’s social worker) and VW. I have of course also had the benefit of reading those documents identified above, hearing evidence in February (including from the Independent Social Worker Mr. McKinstrie) and of hearing from NB herself.

Keith McKinstrie (ISW) : In his first report of December 2014 Mr. McKinstrie noted in respect of NB living with her family that:

“the period NB and VW lived together was characterised by VW and NB refusing to engage with health and social care professionals other than in response to a crisis, arguments between NB and VW that could on occasion be violent, VW seeking respite care for NB and NB refusing to allow support workers to care for her as she considered this should be done by VW.

It is my opinion, should NB return to the care of VW, their relationship is likely to revert to the same dynamics and patterns as previously, which were physically and emotionally harmful for both…” (E807)

In respect of shared care, Mr. McKinstrie noted that:

“NB has a need for predictability and routine in her life. In my view a shared care arrangement will not provide this. The care and support she receives from VW and from carers in her placement will almost inevitably be different and inconsistent. “(E810)

“A shared care arrangement would only have a chance of working in NB’s best interests if all those caring and supporting NB agree how her needs should be met and are willing and able to abide by a protocol that prescribes their practice.

Previous experience implies VW would find it difficult to work cooperatively with health and social care professionals if she disagreed with what was proposed by either the local authority or the placement provider as to how her daughter should be cared for and supported.

Similarly a placement provider would be unwilling to compromise their practice if they considered what was proposed by VW was either not in NB’s best interests or counter to their organisational principles or ethos.” (E811)

In his second report of April 2015, after the L G placement had collapsed, Mr McKinstrie

Mr. McKinstrie was present at the hearing in April 2015 and, so the court was

Mr Nujoo (Manager of P House): In oral evidence Mr Nujoo explained that he thought NB was currently more settled at P House. He confirmed that NB does use the communal areas, and he explained the quite complex regime in respect of NB’s use of ‘as required’ medication. He confirmed that NB’s placement at P House could be kept open for a shared care arrangement but he questioned how well outreach staff would be able to cope with transition journeys because they would not know NB well, explaining that NB had “said ‘no’” to two agency staff whom he had tried to recruit. It was his view that “leaving home is different to leaving class…it’s a different level of anxiety” for NB. When asked by Mr Reeder, he agreed that a shared care arrangement “creates more risk” of encountering behavioural challenges such as might lead to breakdown of the placement at P House.

Ms. Ezekiel (social worker): In oral evidence Ms. Ezekiel expressed her concern that NB “would find it very hard to get over the loss of her room” in the family home. She agreed with Mr. Anderson that the proposed shared care arrangement offered a “structured respite” which was “more promising” than historical arrangements but expressed concern that NB’s time at P House would be at weekends, the very time which had previously been considered “family time,” which she may experience as distressing rejection. Ms. Ezekiel felt that much depended on handover arrangements, and the experience of contact sessions suggested to her that leaving home would cause NB “a lot of distress.”

Ms. Ezekiel considered that NB’s current wishes were “to be in a place where she can be cared for.” She acknowledged that VW “has tried hard,” and that “if sustainable, Mum should be tried” but ultimately she felt that a return to the family home would not be sustainable. She felt that the relationship between VW and NB was “already at breaking point and NB’s needs can’t tolerate that.” She referred to comments made “as recently as Tuesday 15th” by VW about balancing the demands of NB and her other children – not meant to hurt NB, but having that effect. She felt that VW’s household was “resourceful but people are busy. It would all fall on mum. It’s not sustainable.”

Ms Ezekiel was quite positive about P House. She considers that the staff there are “trying to get it right now” and NB is reasonably settled and stable: In May, shared care was the ‘least worst’ arrangement but it isn’t now – [NB] is reasonably settled and still has good relations with her family.” She considered that, in contrast, shared care would limit NB’s opportunity to grow into adulthood.

VW: VW confirmed that she was proposing that NB stay at the family home for Monday, Tuesday, Wednesday and Thursday night of each week, and return to P House for the weekends, with transition journeys arranged through Ms. Ezekiel. She proposed in oral evidence that NB would have her room back, that her younger son T would have the box room, she and her husband their usual room and her older son H “would sleep downstairs.” She explained that H is very nearly 18, had a baby of his own and “they’ll be giving him a flat at some point.” She did not agree that there would be any pressure on NB’s use of the bathroom because the other members of the household would be up and out before NB wished to use it.

VW raised her concerns that NB was not eating properly at P House and as consequence putting on weight. She explained in startling terms the effect she feared this might have on NB. (It was apparent in court that her evidence caused NB some distress at this point.)

When asked about H’s return to her home, VW spoke passionately about her determination to meet the needs of all her children; how she has “beaten my care orders” because her children all want to be with her. She referred to having to take NB to a blood test recently and how this demonstrated that “you can’t tell me about care bearing in mind what they can’t do for her.” VW understood the concern about sustainability of NB returned to live at least partly at home but considered that placement anywhere else would be unsustainable: “I’m holding those placements together. She phones me every day. I am the key person.”

I have regard to the principles of the Mental Capacity Act 2005 as set out in section 1, and in particular the requirement at section 1(5) that my decision must be made in the best interests of NB.

In determining what is in NB’s best interests, I have regard to section 4 of the Mental Capacity Act 2005 and in particular the requirements at s4(6) to consider NB’s past and present wishes and feelings, her beliefs and the values that would be likely to influence her decision if she had capacity; and at section 4(7) to take into account the views of anyone engaged in caring for NB or interested in her welfare, which I consider clearly includes the views of VW.

I have been referred to

The relationship between NB and VW: Before considering the specific question of where NB should live, it is important to recognise the importance of the relationship between NB and her mother. I have no doubt at all of the strength and sincerity of VW’s wish to have NB live with her, or her belief that this would be in NB’s best interests. It is very clear to me that VW loves NB, wants to do her best for her, and is willing (in Mr Reeder’s words) to “step up to the mark” for her.

However, it is also clear to me that the relationship between VW and NB is informed by their historical separations. They have lived apart longer than they have lived together, and VW expresses a conviction that such separation will be overcome (in respect of all her children) with a sense of grievance. In return it is common ground between the parties that NB is particularly demanding of her mother’s sole attention. In reality, the demands of caring for NB are great. The practical experience of living together since NB returned to the family home on reaching majority is that there have already been two occasions (in March 2014 and in April 2015) when VW felt unable actually to provide the care which NB requires. Faced with competing demands, VW was not able to give NB’s needs priority. I agree with Mr. McKinstrie and Ms. Ezekiel, that there must be a significant risk that VW would again reach a point of feeling unable to cope, with further emotionally damaging consequences for NB.

The wishes and feelings of NB: NB has mostly expressed a clear wish to live with VW. That is what I understood her to be saying when she spoke to me in court. Latterly, there is a suggestion that her wishes may be more nuanced. Her most recent written wish was to “leave P House and go to a different care home or live with family” (C610). Ms. Ezekiel considers that she really now wants to live somewhere other than P House where she will be cared for. It seems to me likely that NB’s recent expressions owe something to the mixed messages she has received from the progress of these proceedings to date.

Shared Care: In the statements and reports filed there have been various analyses of the advantages and disadvantages of NB returning home on a full time or a shared care basis, but not of precisely the proposal VW puts before the Court today.

I consider the benefits of VW’s proposal of shared care to be as follows:

I consider the disadvantages of VW’s proposal of shared care to be as follows:

P House pending identification of permanent placement: The alternative option to the shared care proposal is that NB remains at P House until a permanent placement can be found for her.

I consider that the benefits of continued residence at P House would be as follows:

I consider that the disadvantages of continued residence at P House are as follows:

Weighing all of the advantages and disadvantages of each option in the balance, I consider that the risks inherent in the shared care proposal significantly outweigh the benefits; and the disadvantages of remaining at P House whilst a permanent placement is found are less grave.

It follows that I do not consider the shared care proposal to meet the best interests of NB, either on an interim or a permanent basis. Although it is less than perfect, I consider that remaining at P House for the time being is in the best interests of NB.

VW may of course ask why, if there was nearly a shared care arrangement by consent in April, can there not be shared care now? The answer is in the changed circumstances. Unfortunately, NB’s life does not stand still whilst court proceedings are underway.

Insofar as arrangements necessary to give effect to this decision may amount to a violation of Article 8 rights, I am satisfied that such violation is necessary and proportionate.

I acknowledge that these conclusions will come as a disappointment to NB and to VW. I would like to emphasis that the decision is based on NB’s best interest, not on a view of anyone’s “fault.” VW gave evidence with determination, and without wavering. She did her best to “step up to the mark.” I urge her now to do her best again to help NB accept the court’s decision, as she indicated she would. VW still has an important role to play in NB’s future.

After giving my decision, the parties agreed to discuss the further directions they sought and submit a draft order for consideration. The draft has as yet not