E (A Child), Re

This matter concerns a little girl E born [a date in] 2011, now 23 months old. She is the daughter of M age 32 years (the mother) and F age 38 years (the father). They are the Respondents to care proceedings issued by Surrey County Council (the LA) on 10 April 2013.

This matter was listed for a 13 day fact finding hearing to establish whether the threshold criteria were established. The LA case, in summary, was that the parents had put E at risk of significant harm by cutting the inflation cuff tube (which formed part of her ventilation equipment) on at least two occasions and had failed to properly understand E’s medical needs, had unreasonably escalated E’s clinical presentation and had not kept professional boundaries with staff. The threshold schedule had over 50 sub-paragraphs detailing the facts relied upon.

I gave permission for Virgin Care Services Limited (Virgin Care) to take part in these proceedings to the extent that they saw the papers (many of which originated from them) and they had permission to seek my leave to question any witnesses within clearly defined parameters. Mr Smith was present throughout the hearing and asked a very limited number of questions of two witnesses.

On the 9^th day, after the court had heard oral evidence from 22 witnesses and before the LA had closed its case, the LA sought permission to withdraw the proceedings on the basis that they recognised they were not going to be able to establish the threshold criteria to the required standard, namely the balance of probabilities. The document submitted by the LA on that day analysed why the LA had reached that conclusion. That has been supported by a detailed chronology submitted by the LA with their written closing submissions as to how the evidence developed during this hearing. The LA position was not opposed by any of the other parties. Although I approved that application I considered it important to set out how this position came about and consider the circumstances surrounding the way E had been removed from her parents’ care on 28 February 2013.

It is not suggested that the issues raised in this case should not have been investigated. What is criticised is the way the information has been presented, both before and after the issue of proceedings, and the process that was used by the LA. It has graphically illustrated the dangers of not rigorously analysing the evidential foundation for and against any allegations made and not exercising a balanced judgment. Due to the complexities of the case it required strong, experienced leadership from the LA who hold primary responsibility for safeguarding issues. Put simply, that was not provided and there was no check on the structures that failed to provide what was required in this case.

Mr Howe has rightly reminded the court of the wise words of Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050 , a case where he declined to hold that the threshold was crossed and observed at paragraph 50 that ‘society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent’ and at paragraph 51 that ‘significant harm is fact specific and must retain the breadth of meaning that human fallibility may require of it’ but that ‘it is clear that it must be something unusual; at least something more than the commonplace human failure or inadequacy’.

I would like to express my gratitude to the legal teams for all the parties in this case, both counsel and solicitors. The logistics have been herculean. This substantive hearing has taken place only 14 weeks after proceedings were issued. The court bundle runs to 19 lever arch files. The legal teams have collaborated constructively to produce chronologies dealing with the various issues in this case, which have been invaluable in ensuring this hearing was not only effective but, importantly, also manageable. Behind each of those documents will have been hours of painstaking analysis and cross referencing of the original records from a number of different sources. All of the advocates have conducted this hearing to the highest standard; in particular, Mr Howe, on behalf of the LA, for the seamless way he lead his witnesses through their evidence in chief to bring the case to life through the contemporaneous case recordings, and Ms Crowley Q. C., on behalf of the mother, for her detailed, well targeted and extremely effective cross examination which turned the case round from what it first appeared to be on paper. This case has illustrated the vital importance of advocates who are experienced in undertaking this work and the value of the forensic process. Without that expertise and this process the outcome in this case could have been very different, which would have been detrimental to E’s welfare.

The parents in this case have shown enormous fortitude. The events of the last two years must have been extremely difficult. They have had to cope with being told soon after E’s birth that she had only a 5% chance of survival, endure the enormous uncertainty of E having many medical operations and procedures whilst she was in hospital for nearly a year, coped with the detailed training they needed to undertake before E could come home and manage E’s care at home with a complex care package, involving around 30 people who spend significant periods of time in their home assisting them in caring for E. Many parents would have buckled under any one of those factors, let alone the combination of them all. During this hearing they have quietly and attentively sat through the evidence, whilst each part of theirs and E’s life has been picked over. It is perhaps an understatement to say that cannot have been easy. It is clear to me they have only been able to do so through their devotion to E, which in my judgment is without question. That is the golden thread that has guided and sustained them through all that they have endured.

E was born with a number of difficulties and required highly specialist care. She required intubation and ventilation at birth and has been ventilator dependent ever since. She was admitted from the community hospital where she was born to the Royal Brompton Hospital (RBH) when she was five days old, and remained there for the next 11 months.

Subsequent investigations at the RBH revealed E had a complex congenital heart disease requiring surgery on 17 August 2011, when she was only 10 days old. She remained ventilator dependent postoperatively and a bronchoscopy on 30 August 2011, when only 23 days old, demonstrated tracheomalacia and bronchomalacia. She subsequently had a tracheostomy performed on 8 September 2011. She was then just a month old. She had a cuffed tracheostomy tube, this was inflated constantly and attempts to deflate it were associated with increased respiratory rate within a few minutes.

E was noted to have dysmorphic features, including a neck cystic hygroma, absent thymus, thin ribs and a bell shaped chest. Genetic analysis diagnosed 22Q deletion syndrome, a chromosomal disorder consistent with a diagnosis of Di George syndrome.

Due to ongoing ventilator dependence, together with feeding and medication via a gastrostomy tube, plans were made for a care package to support her in the community, along with a training package for the parents. This training was initially conducted at the RBH.

E was discharged from the RBH to the Tadworth Children’s Trust Hospital on 9 July 2012. The parents’ training continued until they were considered proficient in all the necessary competencies, which included such matters as being able to undertake a tracheostomy change, changing the tracheostomy tapes that secure the tracheostomy tube on E’s neck, and inflating the cuff (a small balloon that when inflated internally supports E’s breathing). To their very great credit the parents were able to complete training and become competent in carrying out these complex tasks. There was some suggestion the parents, particularly the mother, took more time than was usual to achieve all the relevant competencies, but as the evidence developed in the hearing it was clear this had to be looked at in the context of the complexity of E’s health needs and the de-skilling of the parents as a result of E’s extended stay in hospital. In fact the evidence revealed that in many respects the parents became very skilled in E’s care and their expertise was relied upon when she was admitted to the local community hospital.

E was discharged home on 17 September 2012 with a care package arranged through Virgin Care. She was still ventilator dependent 24 hours per day. The care package consisted of 9 hrs per night of waking night care, 4 hours per day care with trained carer support plus babysitting care once per week for 4 hours. In addition, Chase Hospice was going to provide 12 nights respite per year. This was, on any view, a complex package.

The structure of the Children’s Community Healthcare Team (CCHT) provided by Virgin Care was that the team was divided into two parts; the Children’s Community Nursing Team (CCNT) who provided the nursing/medical care and the Children’s Continuing Healthcare Team (CCHT) who dealt with the care staff and social care needs. Ms Smith, is employed by Virgin Care as the Specialist Children’s Community Nursing Services manager for Surrey. She runs five separate teams, including the CCNT and CCHT. These teams look after between 2 – 3,000 children at any one time and she has over 30 years experience working with children as a nurse and manager. The individuals who had most contact with the parents were Ms King and Ms Painting. Ms Painting’s role was to ‘assess, plan, evaluate and provide care for children on her caseload’ and Ms King’s role was to ‘oversee her care and do some of the training for support workers....lead nurse regarding E’s supplies of equipment and would oversee how the care package was running’.

One of the experts instructed in this case, Dr Evans, a consultant respiratory paediatrician and lead paediatrician for the long term ventilation service in Southampton General Hospital, acknowledged that five years ago a child like E would probably not have been discharged into the community. She was in the top category of children being cared for by Virgin Care in terms of complexity, and was the only child in Surrey living in the community at home with a cuff tracheostomy who was ventilator dependent. Ms Smith said in her oral evidence she had never come across a situation as complex as this one.

The LA first became involved when there was a multi agency referral received by Surrey Children with Disabilities Team on 5 April 2012 from the discharge co-ordinator at the RBH. On 16 April 2012 an initial assessment was completed and a multi professionals meeting was held on 3 May 2012. The focus of that meeting was the training required for the parents and the care package. Ms Cook became the allocated social worker from the Children with Disabilities Team East on 7 August 2013. Her team manager at that time was JL.

A few weeks after E returned home Ms Cook undertook a core assessment. Although this was completed in October it was not finalised until early December as Ms Cook said the parents requested some corrections were made to the draft. It is a comprehensive and detailed assessment, Ms Cook had initially been visiting weekly, which then moved on to fortnightly and then reduced to about monthly. The assessment provides a positive account of E’s situation in the care of her parents, it acknowledges that E’s health needs continue to be complex and stressful for the parents to manage and the parents continue to need extra support to enable them to spend time together and relax. The conclusion was to provide services in accordance with s 17 Children Act 1989. Ms Cook astutely observed in the body of that assessment ‘It is therefore necessary to ensure that any future work done with the family is sensitive to any additional needs parents have and works collaboratively with parents to support them to care for E rather than professionals being over reactive to parents attempts to support E to have a normal childhood’. For reasons which are not clear this assessment was not shared with the Community Health Team.

A Team Around the Child meeting (TAC) was held on 14 December 2012. This meeting was attended by Louise Cook (social worker), Jane Smith (manager of the Community Health Team), Dave Winch (Long Term Ventilation Nurse at the RBH), SB (Portage), RB (The Chase) and other members of the CCHT. The main issues raised concerned ventilation (the parents were described as stating there was a five minute leeway); time taken up with their parents anxieties rather than with E; unnecessary reporting and/or escalation of matters (including blood in E’s faeces) and the parents not being able to observe professional boundaries.

The evidence has demonstrated that each of these reported issues had been, to put it at its most neutral, misunderstood.

The issue regarding ventilation was interpreted by those at the meeting as demonstrating a lack of understanding by the parents as to E’s ventilation needs, with the suggestion they might keep her unnecessarily off her ventilator. What in fact had happened is the parents had received advice from Dr Rosenthal (the consultant with overall charge of E’s ventilator care at RBH), as part of the assessment as to whether she could safely be discharged into the community, that there was up to a 5 minute window. In his oral evidence he described this as the ‘wriggle room’ which could be utilised in the event of an emergency (such as failure of ventilator equipment, decannulation, emergency situation such as power failure/fire etc). The parents had fully understood this as they accurately described it to RB on 6 November 2012, when they discussed with her E’s emergency care plan in the event of her staying at the Chase. As RB recorded in the care plan ‘In the event of decannulation E can breathe for 2 – 5 minutes. However she may not breathe sufficiently. She will look pale, then cyanosed – losing consciousness and finally having a cardiac arrest’. This is consistent with what the parents are recorded in the CCHT notes as telling Ms King on 14 December 2012. There is no evidence the parents ever experimented taking E off the ventilator (despite the implication in Ms Smith’s oral evidence when she said the parents were not supervised 24 hours a day). In fact all the evidence points the other way. Whenever there have been incidents when E has come off the ventilator both parents have reacted promptly and effectively to restore E’s ventilation. It is difficult to see how this position became so misinterpreted, but it appears to be due to a combination of RB failing to explain the context in which this information had been given, Mr Winch being unaware of this advice from Dr Rosenthal and the discharge plan for E not clearly stating this. As a consequence of this lack of communication this became a serious concern that seemed, like many others, to gain authority by repetition, without a proper analysis or understanding of the underlying factual foundation. It also became fuelled as a concern with the misinterpretation of what the parents said about weaning off the ventilator as evidence of the parents lack of understanding of E’s ventilation needs. Unfortunately, this was to become a recurring feature in this case.

The second issue at the TAC meeting centred on parental anxieties, effectively that the parents overreacted to the detriment of E. Again this appears to have its foundation in a misunderstanding of E’s position (for example that she was immune suppressed as Dr Rosenthal confirmed in his oral evidence) and the complexity of E’s needs ( for example the limited experience of the community health team in dealing cuffed tracheostomy tubes, particularly in a community setting). The evidence also clearly demonstrated that there was limited recognition, from the community heath team in particular, of the de-skilling of the parents as parents. They had simply not had the experience most parents had of discharge home soon after birth and gaining experience in the care of their child. They had not been able to provide any day to day care for E in the first year of her life. A vignette of this is well illustrated after E is discharged to the Tadworth by the mother asking if she can pick E up.

In fact the evidence has demonstrated that, despite all the odds, E is meeting all her milestones. SB, from the Portage team, gave fulsome evidence about E’s progress. In particular, describing the care with which E handled books, unlike many children her age, which demonstrated the time the parents had taken with her. At their review appointment in October 2012 with Dr Rosenthal he described E as looking ‘remarkably well and has developed beautifully. She is now sitting unsupported, standing with support, and has clearly come on leaps and bounds’. No one has suggested in their oral evidence that this progress in E’s development is other than significantly due to the high standard of the parents’ care. However, this was not clear in the written statements prepared for this hearing, which focussed on the concerns, without any appropriate balance given to the positives.

The third issue raised at the TAC meeting was what was repeatedly described in the oral evidence as the escalation of E’s clinical presentation. Some matters relied upon at the start of this hearing were soon withdrawn. For example, the suggestion that the mother had reported E’s skin had broken down in the area of her tracheostomy dressing and had healed a few days later. The undertone of this allegation was that the speed of healing was suspicious, and supported the suggestion that the mother fabricated a medical concern to gain attention. In fact Ms King accepted there was no mention of skin being broken in the original recording of her discussion with Mr Winch. All the mother was reported to have said to one of Mr Winch’s colleagues was it was ‘rubbing on E’s neck’. One of the main concerns under this heading was the reporting of the mother of blood in E’s faeces. The CCHT reported to the TAC meeting that ‘the parents were stating there was blood in faeces or other issues so staff go out, is constant huge escalation around clinical presentation. RB stated that when at Chase they did observe E to have blood in her stools. It was discussed that the issue was how the presenting problem escalated into parents shouting at staff down the phone’. However, the oral evidence soon established that this somewhat confusingly articulated concern lacked foundation. There were in fact several instances between October and December where blood was observed in E’s nappy by her mother, nursing and other carers. The idea of an anal tear or fissure had in fact originated from one of the carers prior to the mother going to the GP. Once re-assured by the GP the mother accepted the position. The later observations of blood appeared to be related to a small broken area of skin, and the mother accepted the advice regarding treatment of that. The failure to properly analyse the history to this, in particular by Ms Smith who was responsible for raising this first at the TAC, meant it was repeated at subsequent meetings suggesting the mother had been unreasonable in what she was saying and ignoring the advice of the doctor that it was likely to be food traces. It was deeply concerning that neither Ms Smith or Ms King had looked at the contemporaneous records and had instead relied on unstructured verbal reporting. It was clear Ms King was unaware that the records demonstrated reports of blood from a variety of sources, not just the mother.

The final area of concern related to the suggestion that the parents, in particular the mother, was unable to maintain professional boundaries with the nurses and carers. The oral evidence demonstrated the opposite. Apart from Ms Smith (who had only met the parents on three occasions) and Ms King most other witnesses who were going into the home regularly confirmed they had been welcomed into the family home and considered the parents had worked co-operatively with them. A striking example of how dangerous misreporting can be was the strong reliance in the statements of the mother’s somewhat high handed attitude in dismissing members of staff. At the strategy meeting on 28 February 2013 it is recorded as follows: ‘M is extremely difficult to work with. She constantly changes support staff hours and asks for staff to be removed/changed due to minor incidences or a disliking of the personnel. She dismissed an excellent agency nurse after 30 minutes because she answered a telephone and another because she put on her coat 10 minutes before departure time’. Unfortunately this was wholly misleading and was not given the correct context. The evidence showed the dismissal was on the second night after E returned home, some 5 months before the strategy meeting. An important context is there had been a failure to provide a carer for E’s first night home, so the mother had missed a night’s sleep. The objection to the noise was not thought to be unreasonable by the carer who gave evidence in this hearing (she had used the telephone). Apologies were exchanged the next day and the carer was restored and continues to provide care for E and is still regarded by the parents as a trusted member of the team. None of that made it into the notes of the meetings or written statements. Unfortunately this lack of balance was not an isolated incident and became a recurring feature of the reporting of this family by the community nursing teams, in particular by Ms Smith.

This also applied to the suggestion that the parents challenged professional advice and undermined E’s care by manipulating staff, for example by going direct to the RBH. There was no evidence the parents were ignoring medical advice concerning E’s care. In fact the evidence established that once the position was properly explained to the parents they accepted it and followed it. This applied to all areas that formed part of the facts relied upon by the LA concerning feeding ; the shortening of the gastrostomy tube (a criticism but in fact it had been part of their training, they were just doing it incorrectly) with a suggestion that it was being done to bring forward surgery (whereas in fact the RBH said it was going to make enquiries about bringing it forward); nebulizer advice was accepted as was the single use syringes (even though it was contrary to the expressed preference of the lead cardiac consultant).

The final matter was the suggestion that the mother had failed to co-operate with an assessment of her learning capacity, which was part of the discharge plan. This was not established on the evidence. The RBH, through Dr Rosenthal, was alive to the issues arising from information to the parents from so many different sources. He saw the value in having clarity and developed a communication system whereby clarity was ensured. Unfortunately that was not communicated to either the Tadworth or the community health teams. Notwithstanding the repeated concerns about mother having some learning disability (together with a suggestion of high functioning autism) no adjustments were made to improve the channels of communication until 7 February 2013 when the mother was given a contact sheet setting out the correct routes for issues to be raised. The confusion during the early days of this hearing as to precisely who had responsibility for what were perhaps illustrative of the difficulties the mother must have had.

This background sets the scene for the position at the end of 2012. The reality was the concerns that were raised at the TAC meeting in December lacked any real foundation. Unfortunately they were not properly analysed and were repeated, and in some cases expanded on, in subsequent meetings to escalate their gravity.

The LA case was that one or both of the parents had knowingly cut and concealed E’s inflation cuff tube on 3 May 2012 at the RBH and had deliberately cut E’s inflation cuff tube on 11 February 2013 when she was living at home. The expert evidence in relation to the relevant equipment failures comes from Dr Evans and Mr Baldwin. Mr Baldwin’s experience relates to examination of marks and had many years experience giving evidence in criminal cases through his employment with the Forensic Science Service. He examined the damaged tubes and provided his conclusions as to how they become damaged.

The event that tipped this case into a safeguarding referral by the community health team to the LA was the equipment failures relating to E’s ventilation and gastrostomy equipment. The evidence establishes that but for the information given by Mr Winch to Ms King on 15 February 2013 regarding an incident at the RBH on 3 May 2012 when E’s inflation cuff tube had been cut, no referral would have been made to the LA.

As a result it will be necessary to consider the equipment failures in chronological order.

At 21.30 on 3 May 2012 one of the staff at the RBH noticed E’s inflation cuff tube had been cut, at the distal end, and the cut off piece was found under one of E’s soft toys. It appears E’s tape change had been done by the parents at about 17.30 in the presence of one of the staff, a student nurse who observed with the specific purpose of learning how to undertake this procedure. The notes show E was given her nebulizer at about 19.15, but the damaged inflation cuff was not noticed until over 2 hours later. Dr Rosenthal conducted the investigation and came to the conclusion that the parents had cut the tube accidentally whilst undertaking the tape change and had concealed it under the soft toy. He did not attribute any blame to the parents for cutting it but said it was a training issue regarding concealing it as everyone can make mistakes. Somewhat surprisingly he appeared to have reached his conclusion without knowing that in fact the tape change undertaken by the parents had been witnessed by the student nurse, who was paying particular attention as it was a competency she was seeking experience in undertaking. The manufacturer’s report stated that the tube appears to have been cut, but it was not retained and could not be subject to any further investigation.

On 27 January 2013 E’s gastrostomy tube broke. This took place in the presence of carers JB and CK and there was no opportunity for the parents to have caused the damage without being detected. Despite that context this event was repeatedly referred to directly or indirectly by Ms Smith as part of the escalating pattern of attention seeking behaviour by the parents. In her statement filed at the start of these proceedings she stated ‘Following this concern, there were three clinical incidents in the space of three weeks, two of which were very concerning and related to E’s breathing tube. The incidents caused a significant escalation of resources to keep E safe at home and we have concerns about how the equipment was damaged’. This reference clearly leaves the January incident in the ‘frame’ without any consideration being given to the actual context and circumstances and that no blame was attributed to the parents.

In relation to the incident on 9 February 2013 the manufacturing report shows this was caused by a defect in the inflation cuff tube caused by lack of adhesive. Mr Baldwin’s report concludes the tube was not cut but was pulled. Due to the manufacturing fault neither Dr Evans nor Mr Baldwin were able to say what pulling force was required. Bearing in mind the evidence about E pulling her tubes it is not impossible that the damage was caused this way. There is no evidence the parents deliberately damaged it.

In relation to the damaged tube on 11 February 2013 Mr Baldwin’s evidence is that this was cut with a single bladed implement such as a scalpel. He said the damage was more likely to have been caused deliberately as it was only partly cut through, which would be difficult to do accidentally. However, in his view it would take some care to do this deliberately. Dr Evans’ team had not come across a tube cut in this way. She only knew of reports from incidents where inflation cuff tubes had been cut in the intensive care unit, but did not have first-hand knowledge. Like many witnesses she had no experience of the cuff tracheostomy tubes out of a clinical (usually intensive care) setting.

The evidence established that CK, one of the carers, was present at the time of the tape change on 11 February 2013. She was present during the tape change after E’s bath, there remained a dispute as to whether she was actually taking part in the tape change, although it is not suggested she was involved in the cutting of the tapes. Given Mr Baldwin’s evidence of the care that was required if this was a deliberate cut, it is inherently improbable the parents would have been able to do this without CK noticing. When the parents went downstairs all was well. It was only when CK went to lay E down in the cot from the sitting position that she heard a ‘whooshing noise’. This suggests something happened there and then. The other time such a noise was heard was at the Chase Hospital when E decannulated. In her contemporaneous notes that evening CK recorded ‘E pulled at the cuff on her trachy. Sudden gasping noise from trachy, changed by parents, cuff tubing had split’.

Earlier that evening CK had noticed a defect on the inflation cuff tube, which she described as a ‘nick’. It was further down the tube than the damage seen later. This was noticed before the bath. Following advice from the on call team she bound it with micropore tape, which she removed before the bath, but did not replace after the bath. It was not apparent on the tube when it was sent for examination by Mr Baldwin. There remained a discrepancy in the evidence as to how difficult this tape is to remove; CK suggested it came off easily, that was not the experience of GS.

The evidence of CK, taken together with the evidence from the parents, does not support a finding that one of the parents deliberately cut the inflation cuff tube, either before CK came on duty or afterwards. If she noticed the nick in the tube she would surely have noticed the damage at the proximal end.

The position is complicated by the incident on 9 June 2013 at the Chase Hospice when very similar damage was discovered to the inflation cuff tube. Mr Baldwin’s evidence was the damage on 11 February and 9 June were indistinguishable and would have been caused in the same way, namely by a single bladed sharp instrument such as a scalpel. It is accepted the parents had no opportunity to do this on 9 June 2013 and the evidence from the Chase Hospice was that it was a ‘sharps free’ environment. There is no suggestion any person present on 9 June was also present on 11 February. It is wholly improbable that two different people could have caused the same damage, albeit on different parts of the inflation cuff tube. In the light of the evidence I have heard it is difficult to see how any findings can be made about the damage to the tubes on 11 February and 9 June without a huge degree of speculation.

There is no dispute between the parties that the community health team were right to investigate the incidents at the home in February. However, it is submitted that there was insufficient analysis of what the issues were, what the risks to E were and for a balanced picture to be presented. I agree. Regrettably the evidence points to a feeding frenzy of misrepresented and incomplete information that, adopting the terminology used against the parents, escalated out of control.

Following receipt of the information from the RBH on 14 February Ms Smith made a safeguarding referral to the LA. It was the first time she had made such a referral in her 30 years experience as a nurse.

It is important to record at this point the structural position of this LA. It has four geographical teams and within each team there is a Child in Need team, a Looked After Child Team, a Duty Assessment team and a Child Protection and Proceedings team. The Children with Disabilities team covers two areas, east and west. If a case from the Children with Disabilities team looks to involve a child at risk of significant harm, then the case is co-worked between the Children with Disabilities team and the Child Protection and proceedings team, although the case might spend some time being co-worked by the Assessment team prior to reaching the threshold for proceedings.

The procedure following the referral from Ms Smith on 15 February 2013 followed, in general terms, the LA submit, the best practice recommended by ‘Working Together’. That is not accepted by the other parties.

The relevant parts of the Working Together to Safeguard Children (March 2010 which were in force until April 2013) guidelines state:

E was a child known to the local authority as a child in need. The first call from Ms Smith was taken by SH, an assistant team manager (ATM) in the Children with Disabilities team. The note of that call states that, when Ms Smith asked if a strategy meeting would be called, SH responded by saying ‘Not at this point, if you assess the current situation, we have three potential incidents from 2 weeks ago, that certainly Health felt was being managed as Children’s services had not been notified. There is no previous. No one has spoken to the family to assess their view / response re the tubes and the concerns raised. Jane Smith also raised that Mother seeks attention and will call the office 4 or 5 times a day. However, she would not deliberately harm her child’.

Ms Cook spoke with SH, ATM, and it was agreed that she would visit the family to discuss the issues with the parents and obtain their views. Ms Cook visited the parents at home with Ms Smith on Friday 15 February 2013 at 12.30pm. The note records that Ms Cook explained child protection procedures to the father and that only if it was thought that a child was at immediate risk of significant harm would a child be removed and that a legal order or police involvement would be required to do this. Following the visit, the note records Ms Cook spoke with an Acting Team Manager named JCG and it was agreed that Ms Cook would speak to her manager, Ms Salami on Monday 18^th February.

On 18^th February 2013 Ms Salami sent an email to the North East Assessment Team [NEAT] asking whether the facts of the case met the threshold for a strategy meeting. On 18^th February NEAT requested that the required form be completed.

On 21^st February 2013, Ms Cook emailed the child protection co-ordinators for St Peter’s Hospital and RBH. The email states Ms Cook will try to accommodate the availability of Dr Rosenthal, Mr Winch and Dr H. (community pediatrician at St Peter’s Hospital) when fixing the date for the strategy meeting. On 21^st February 2013, Ms Cook received a response that Dr Rosenthal, David Winch and Dr H. have ‘blanked out next Thursday’ to attend the strategy meeting.

On 27^th February 2013, Ms Cook spoke to the parents and advised them of the date of the strategy meeting.

It appears from the recording quoted above from SH that at the time the meeting was called the situation was not regarded as one that raised an immediate risk of harm. If the information received had raised the risk of immediate harm to E, the strategy meeting should have taken place ‘immediately’ in accordance with the guidance in paragraphs 5.51 and 5.52 Working Together.

The LA submit it was only during the meeting, on the basis of the information provided by the health care professionals present, that the local authority regarded the situation as one that raised an immediate risk of harm.

The strategy meeting took place on 28 February 2013 attended by Ms Cook (social worker), Ms Kenny (ATM with the NEAT), Ms Salami (ATM), Ms Docker (RBH family liaison manager), Ms Smith (Manager CCHT), Dr Rosenthal (Consultant RBH), Ms Cowdroy (Virgin Care) and Ms McMichael (CCHT). Sharon Kenny chaired the meeting. It was clear that the purpose of the strategy meeting included consideration of whether this could be a case of fabricated and induced illness. The concerns raised by professionals were alarming, portraying the parents as manipulators, fabricators, demanding, unreasonable and difficult, who had cut their daughter’s essential medical equipment: It was believed that the 3 broken tubes had been cut by the mother; some of the ‘incidences’ were attention seeking; an experiment had been conducted by the RBH and Health care team and it was found impossible to break them. The tube cuts were clean which was consistent with cutting by scissors or a knife; the mother had not admitted the incidents and after the RBH incident the parents had stayed at home for 3 days; during one incident at home the support worker was asked to go out of the room by the parents whilst they changed the tapes; it was felt that the mother had deflated the balloon first causing the pressure to drop; the mother had dismissed excellent nurses without good reason; she was very difficult to work with; the parents, especially the mother, ‘are extremely demanding, manipulative, controlling and fabricate the situation with different stories to different personnel/services’; The mother ‘escalated’ concerns, and the father covered for her.

In addition to the record of the strategy meeting Ms Cook gave oral evidence about that meeting: In her evidence in chief she said:

The LA accepts it is now clear that some of the information being presented by the health care professionals at the strategy meeting on 28^th February 2013 was inaccurate. However, they submit that it was not unreasonable but, in fact, necessary for the LA to rely on the information provided to it by health care professionals who were the experts on the medical issues raised and who had far greater working knowledge of the family.

Paragraph 5.58 of Working Together requires that ‘Where the agencies most involved judge that a child may continue to, or be likely to, suffer significant harm local authority children’s social care should convene a child protection conference’. It is accepted the LA must exercise its own judgment, must question and analyse the information and opinions being expressed if proceeding with an application to remove rather than to a child protection conference. However, they submit, it was the medical staff who had most contact with the family and who were expressing serious concerns for E’s immediate safety. It is submitted that the LA had to act on the views that were expressed and, in fact, would be open to criticism had it not done so.

The difficulty with that submission is that it seeks to abdicate the LA from responsibility in relation to the decision that was taken. It appears there was no effective challenge or testing by those from the LA of the information that was being provided by the health professionals, or any request that it should be put into context or balanced by any other factors. At the strategy meeting on 28 February 2013 Ms Smith and Mr Winch appear to have given information to that meeting that was not given before. Ms Cook described reference to an experiment undertaken by either Ms Smith or Mr Winch which suggested the mother must have deflated the cuff before cutting the tube, reinforcing the idea that it may have been done deliberately. Mr Winch and Ms Smith were not asked about this in their oral evidence as Ms Cook’s account came afterwards and it is not recorded in the minutes. Also that the ventilator records suggested the parents had deliberately silenced the alarm. This does not appear to have been considered with the evidence from CK who confirmed the parents were not left alone for any significant period of time on 11 February 2013. There was inaccurate reporting of events (such as CK being told to go out of the room instead of being asked to stand at the end of the bed on 11 February). After the incident at the RBH it was reported the parents had not visited for 3 days, implying some kind of culpability. In fact the records show they were only away for a day, the father was working and he rang to enquire about E. The discussion about the incident at the RBH in the meeting was not in the context that the RBH considered it was an accident or that the parents had been observed throughout the tape change procedure. There were prejudicial descriptions recorded of the parents, describing them ‘extremely demanding, manipulative, controlling fabricate the situation with different stories to different personnel/services’. No examples were recorded or asked for. The meeting was informed the ‘removal’ of the tracheostomy tube was not life threatening but would cause discomfort. Despite this it was decided that E should be removed immediately.

There was no informed assessment at the strategy meeting of what the risks were to E of damage to her inflation cuff tube. In fact a number of people who gave evidence during this hearing were unclear about what the routine then was with regard to the cuff and what it was for. Since E has been at home it was only inflated at night time when she is asleep and during any sleeps in the day. On both the 9 and 11 February the parents performed an immediate tracheostomy change, she came to no harm. It appears that on the night of the referral by Ms Smith to the LA the community health team were unable to provide any night cover for E and there was a suggestion that between the referral and the strategy meeting there were other occasions when no cover was available. On the ground the parents, together with the carers, had continued to provide the high standard of care for E for the 17 days between the last ‘incident’ and the strategy meeting, with no suggestion of any further incidents or any increase in visits by professionals to the family home to monitor or further assess the situation. That important fact appears to have played no part in the discussion at the strategy meeting.

The decision to remove E that evening, in effect by way of an enforced section 20 agreement with the parents in the presence of two social workers and four police officers (three of whom were uniformed) was, in my judgment, simply not justified. The LA accept that, as Mr Howe records in the written submissions ‘With the benefit of hindsight, it can now be seen that the risks to E on 28^th February were not as immediate as was being presented, particularly as the last incident complained of had occurred on 11^th February, some 17 days and that the concern was not that the equipment was damaged and E left to suffer but that the equipment had been damaged, for reasons that the professionals could only speculate about, but then immediately replaced’.

I, of course, recognise that I have had the benefit of reaching my conclusions in the cold forensic environment of the court process. However, the decision appears to have been partly influenced by the fact that the parents were planning to take E to Birmingham to visit the maternal grandparents the next day. There was no suggestion that this was other than a trip that was known about by the professionals involved in E’s care. However, no consideration was given to asking the parents to delay that trip and/or put in a package of enhanced care at home for a short period prior to the matter being put before a court. There was no consideration given to the fact that the parents had continued to care for E since 15 February with no concerns and in fact had done so with inadequate cover for night time care being provided by the community health team. The decision to remove was made without a proper analysis of the relevant information and was heavily influenced by the recycling of inaccurate information. This was not a situation that came within the ‘exceptional’ category within the Working Together framework that justified the action that was taken. Whilst the community health team have to take some responsibility for this situation, as they were the source of much of the information, together with those present from the RBH, if there had been better continuity and effective management of the relevant LA personnel this situation may have been avoided.

What the LA should have done was apply for either an EPO or interim care order on short notice (as set out in the clear guidance from McFarlane J (as he then was) in Re X [2006] EWHC 510 Fam). This would have required the LA to set out its evidence in statement form and the parents would have had an opportunity to be properly represented and challenge the LA case. The LA, in their written submissions, realistically accepts the procedure adopted by them that evening cannot be justified. They are right to do so. To use the section 20 procedure in circumstances where there was the overt threat of a police protection order if they did not agree, re-enforced by the physical presence of uniformed police officers, was wholly inappropriate. By adopting this procedure the LA sought to circumvent the test any court would have required them to meet if they sought to secure an order, either by way of an EPO or interim care order. The parents were asked to agree and sign a contract of expectations (parts of which were incorrect) and the bulk of which was a summary of local authority concerns. Although the LA had for some time held the view that both mother and father were suffering from learning disabilities, no special measures were taken, the parents were not referred to lawyers, and it is not clear to what extent they understood the implications of the agreement they signed.

In Re CA (A Baby) [2012] EWHC 2190 (Fam) Hedley J provided guidance as to the duty of a social worker to be satisfied that the person consenting to a section 20 accommodation of a child by the LA has capacity to do so, is fully informed and that there are reasonable grounds for removal, with a requirement that such removal should be proportionate. As he observed at paragraph 27 ‘...the use of Section 20 is not unrestricted and must not be compulsion in disguise. In order for such an agreement to be lawful, the parent must have the requisite capacity to make that agreement. All consents given under Section 20 must be considered in the light of Sections 1-3 of the Mental Capacity Act 2005.’ He stressed even where there is capacity, it is essential that any consent so obtained is properly informed and, at least where it results in detriment to the giver's personal interest, is fairly obtained and there is due regard for the giver's rights under Articles 6 and 8 of the European Convention on Human Rights. There is little evidence in this case of any of these important considerations and safeguards being considered. Surprisingly, there is no social services record of E’s removal by the NEAT, who had charge of these decisions.

One of the concerning features about these events is the parents say they were not advised to seek legal advice and there is no record of them being so advised. Ms Cook said she could not remember. The evidence points to them not having been given that advice as they did not seek legal advice until after the meeting with the Ms Aira (the acting team manager) on 19 March 2013, when they were informed of the LA’s intention to issue legal proceedings and advised to seek legal advice. The parents did so that day. However, nearly three weeks had passed since E was removed from her parents care and it was five weeks before the matter first came before a court.

The peremptory removal of E from her parents care was, in my judgment, achieved through an unfair process whereby the LA held all the cards and the parents had no choice but to ‘agree’ in circumstances where they, in reality, had no choice. A consequence of this process is that the parents were powerless to challenge what had been done for over five weeks, had no access to independent legal advice for them or on behalf of E and it meant that the regime following such a removal was by way of LAC reviews rather than child protection case conferences.

The way the parents reacted to the removal of E from their care, making frequent contact with the Chase Hospice and seeking clarification about the care she was being given formed a positive part of the LA case against the parents. However, as the evidence unfolded it became very clear that due to the speed of the decision to remove E inadequate preparation had been made to ensure there was a clear care package to guide those caring for her (as described in the case recording on 5 March 2013). There was also a lack of clarity for the parents about what they could, or could not do, particularly in terms of their contact with the Chase. GS said she and her team had inconsistent information from the health professionals about what should be done, in particular as between the community health team records and the information from the GP. They resolved this by taking advice from the RBH. The consequences for E is that there was a disruption in her care which resulted in her not being given tasters of food, as the mother had been doing, and there was inconsistency in understanding as to when her cuff should be inflated.

The other feature of this period (despite this being section 20 accommodation) was the parents were regarded as a negative influence in relation to E’s care. The documents they were required to sign ‘agreeing’ to E’s removal was inaccurate in terms of the contact they would have with E. It referred to them having contact twice per week, rather than twice per day. As a result of the failure by the LA to properly manage what the contact should be between the parents and E and the parents and the carers, the parents concerns about the care E was receiving (some of which turned out to be justified) resulted in their contact being curtailed and matters that were happening with E were not shared with the parents (such as the nick to the neck), when they should have been.

The irony about this period is that it was the parents who probably knew best what E’s needs were, but were being prevented from conveying that important information to those providing her day to day care.

The forensic process has established that the negative attitude to the parents probably came about due to the underlying and pervading view within the community health team and the LA that this was a case of suspected factitious illness (FII). It is first mentioned in the TAC meeting in December, which records ‘CNHT feel possible FIL parents stating there was blood in faeces or other issues so staff go out, is constant huge escalation around clinical presentation’. In the record of the strategy meeting on 28 February 2013 it is recorded ‘we should consider whether this could be a case of fabricated and induced illness’. At the professionals meeting on 24 April this issue raised its head again. The meeting notes record ‘There was some discussion with regards to fabricated illness – intentional and unintentional – however this was described more in terms of parents characteristics/traits’. Under the section ‘Analysis of Information’ it records ‘Discuss with KNP as there are allegations of fabricated illness and whether it might be necessary to invite Dr K. to the meeting on 8 May 2013’. The evidenced suggests this view emanated from the community health team, probably from Ms Smith although not disputed by other members of her team present at meetings when it was raised.

The protocol with respect to cases of FII; ‘Safeguarding Children in whom illness is fabricated or induced’ issued in 2008 gives guidance as to how cases such as this should be managed. There is advice for health professionals, paediatricians, and local authorities contained in chapter 3. In particular any health care professional who suspects FII should consult their clinical manager and the named doctor or nurse for safeguarding children (3.12). Careful and complete notes should be kept at all times (3.16), and the medical history of the child should be carefully reviewed (including reviewing all medical notes, and drawing up of a medical chronology; 3.24).

It is clear by February that the allegations against the parents amounted to a form of fabricated and/or induced illness. If any of the professionals involved had looked at, or followed the guidance and read the medical records, the LA might well have realised before this hearing that a number of the matters relied upon against the parents (for example about time off the ventilator, blood in nappies, single use syringes, dismissing staff, being dishonest, wrongly managing the feeding tube) were not made out. The submission by Mr Howe on behalf of the LA that this LA ‘did not treat this as a factitious or induced illness case’ and seeking to distinguish this position from that in Re X [2006] ibid is not supported by the evidence. Whilst it is right it did not form a positive part of the LA case, the LA allowed this issue to remain unresolved in the case records without having it either properly investigated or making it clear it was not regarded as a relevant consideration.

There was, in my judgment, a lack of effective structure and leadership within the LA regarding the decisions made before and after E’s removal from her parents care. The changes from one social work team to another did not help, with the added factor of E’s complex medical needs and the lack of clarity about the role of the community health team. This is illustrated by the fact that it appears Ms Smith was permitted to effectively chair the meeting on 24 April, when that was clearly the responsibility of the LA. The safeguarding responsibility is with the LA, which includes a responsibility to properly lead decision making. Due to the process adopted by the LA important decisions regarding E were being made by three different teams (Children with Disabilities, Duty and Assessment team and Child Protection and Proceedings team) over a relatively short period of time, often overlapping. If the LA had issued proceedings after the strategy meeting, as in my judgment they should have done, the resulting confusion may have been avoided, or at least reduced.

Both the LA and the community health team failed to check the evidential foundation of what was being asserted by them and ensure it was presented in a balanced way. There was little evidence of effective and consistent management or supervision of the social workers who were operating on the ground.

Whilst Ms Dickson was the allocated SW after the 28 February, she was a locum and left shortly afterwards due to concerns regarding the standard of her work. The risk assessment she completed in relation to the parents contained numerous errors. Her acting team manager, Ms Aira, appeared to have limited understanding or control of the case. Her statement filed when proceedings were issued, nearly 6 weeks after E had been removed, contained numerous mistakes and misrepresentations. The amended statement filed 4 weeks later did not correct all the errors. There were repeated assertions about the father’s violence or aggression with no balancing of the context (for example his behaviour when E was being removed from the parents care, although the father helped load E’s equipment onto the ambulance; the meeting on 19 March when the LA announced they were issuing proceedings nearly three weeks after E had been removed). Ms Dickson referred to the mother having ‘high functioning autism’; there was no evidential basis for this assertion, as was confirmed by Ms Alam (Chartered Psychologist) in her report in these proceedings.

In relation to the community health team this is perhaps most graphically illustrated by the notes of the professionals meeting on 24 April 2013. This was attended by DR, the newly allocated SW from the Child Protection Team, whose team took over when proceedings are issued. She had only been allocated the day before and this was her first meeting. It appears Ms Smith was allowed to chair this meeting and the notes record an alarming level of misinformation. Rumours were recorded, with no analysis of their base and what steps were going to be taken about that information. Ms Smith is recorded as saying that ‘it was always necessary to have two people to see the couple’, which the oral evidence subsequently demonstrated was not the experience of all those who dealt with the family. The meeting notes record ‘There was some discussion with regards to fabricated illness – intentional and unintentional – however this was described more in terms of parents characteristics/traits’ . Under the section ‘Analysis of Information’ it records ‘Discuss with KNP as there are allegations of fabricated illness and whether it might be necessary to invite Dr K. to the meeting on 8 May 2013’.

For the reasons outlined above I give the LA permission for the care proceedings issued on 10 April 2013 to be withdrawn.

Mr Howe has rightly reminded me that I should guard against ‘Hindsight Bias’ and ‘Outcome Bias’ which is described in The Department of Education’s Guidance on ‘Improving the Quality of Serious Case Review published in June 2013 as follows:

However, there is no issue between the parties that unless the LA are working in partnership with the parents and there is informed consent to section 20 accommodation (as described by Hedley J in Re C (ibid)) a proper and fair process should be invoked before a child is removed from the care of his or her parents. Police powers of protection should only be used in exceptional circumstances, where there is insufficient time to seek an EPO or for reasons relating to the immediate safety of the child. Otherwise it should be by way of EPO (in accordance with the principles and guidelines clearly laid down by McFarlane J in Re X (2006) ibid) or by way of an interim care order. Only then can the rights of all parties be properly protected and, most importantly, the parents and the child will have effective access to legal advice and representation. The route used in this case sought to circumvent those important safeguards that ensure a fair process when the State seeks to interfere in family life.

This case has demonstrated the vital need to check the sources of information that form the foundation of decisions being made relating to child protection, so an assessment can be made about its reliability. The fact that a piece of information has been repeated many times does not enhance its reliability. In my judgment, if time allows, information to be given to a meeting by key participants, where important decisions are going to be made (such as a strategy meeting) should be reduced to writing, giving those attending the opportunity to be able to read and consider information in advance, particularly if they are new to the situation. This particularly applies where there is a gap between the request for a meeting and the meeting taking place and where the circumstances are complex, as this case was. This would allow for a process to check information, assess its reliability and strength and ensure more balanced and robust decisions are made.

In relation to statements for court proceedings it is essential they are based on contemporaneous records, not recollections made some months later. Repeatedly in this case witnesses when confronted with the contemporaneous records had to revise the contents of their written statements. The importance of ensuring factual information is accurate has recently been emphasised in Re C (Care:Contact) [2010] EWCA Civ 959 ( at paragraphs 42 and 63). In addition, there is an obligation, particularly on public authorities who are seeking orders that interfere with Article 8 rights to family life, for a balanced picture to be presented, not just the negative information, or the facts cast only in a negative light.

I trust the energies and resources that have been used to bring these proceedings will now be used to restore working relationships with those who work with E and her parents’ on the ground, with the aim of restoring E back to her parents care with a coherent package of support that fully recognises the enormity of the task the parents are taking on. This is planned to include the training of the maternal grandparents to support the parents with E’s care. The restoration of a constructive relationship may require the use of an outside independent resource to assist in facilitating this, even if only in the early stages. No doubt I will be updated on developments when this judgment is given.