Hertfordshire County Council v H

This is an application, supported by the child's parents, by a local authority to withdraw care proceedings, which commenced earlier this year in relation to a little boy who is just over six months of age. He is the first and only child of these young parents. The mother has a significant mental health history of depression and of suicide attempts. She took an overdose of tablets when D was two days old. That is the last episode of that kind of event.

D underwent two life-threatening events as a small baby. On investigation he was found to have subdural collections. He was made the subject of these care proceedings and removed from the care of the parents and placed with foster parents. It was obvious from an early stage in the proceedings – indeed, when the matter first came before me earlier this year – that the medical presentation did not appear to be as straightforward as is sometimes the case. The concern was that D's medical presentation was the result of some form of traumatic incident (possibly a shaking injury), coupled with, or independent from, a possible smothering injury or other abusive behaviour. The treating physicians were unclear. I directed that there be three independent experts, Dr Jayamohan (a neurosurgeon), Dr Ganeson (neurologist and part of the treating team), Dr Anslow (a well-known paediatric neuroradiologist) and Dr Morrell (consultant paediatrician with wide experience in child abuse and trauma cases with a particular interest in false illness syndrome).

In relation to the first presentation of D in February, Dr Ganeson said that on the clinical and radiological findings he could not say on the balance of probabilities that trauma was the cause of the episodes. In relation to the second incident in March he said "on the balance of probability I do not think that this later episode can be attributed to trauma. It is more likely that this episode was secondary to the severe gastro-oesophageal reflux or the cardio-arrhythmia", those both being conditions from which D suffers.

Dr Jayamohan said in relation to the MRI scans taken in February 2013 that the signs were consistent with there being a small amount of blood within the brain matter. This was after a lumbar puncture had been performed on D. He was not certain as to the cause of high signal changes. He also noticed very small subdural collections, so there was a small amount of fluid over the surface of the brain. He did not think that this was consistent with acute blood; it might be old blood or an effusion (fluid). He favoured the latter view. In his view, the appearances were in keeping with the after effects of lumbar puncture. There was also a suggestion that the appearances might be consistent with being secondary to seizures. In relation to the March presentation, there was no evidence of injury or ischaemic damage to the brain, and no evidence of injury to the spinal cord. There was no evidence of a separate event which could have caused D to have seizure activity. He thought that there was a possibility that some of the appearances were related to the birth process. He maintained the view that the lumbar puncture was a significant event which could be responsible for the appearances. It is unlikely, he said, that the appearances in March were chronic subdural haemorrhage. He found that in February there was no evidence that pointed towards trauma of the brain. In relation to the March appearances, it was possible that they could have been caused by non-accidental shaking events, but there was no indicator that made him feel that this cause was more likely than any other of the possible causes for collapse. There was no indication of precisely what had caused the collapse.

Dr Morrell (consultant paediatrician) considered that gastro-oesophageal reflux is the most likely cause of the Acute Life-Threatening Episodes, although these would not explain the origin of the subdural and the sub-arachnoid haemorrhages, of which there were other possible causes, including non-accidental injury. Because of the absence of other evidence it would not be possible to state that the other causes were more likely than not to be the cause of the ALTEs.

Dr Anslow's opinion is that the February scan did not show fresh blood. He also thought that the lumbar puncture was an extremely important feature and thought that it was probable that the subdural collections resulted therefrom. He could not identify any brain pathology or signs of recent trauma. In March 2013 there was nothing to indicate a further traumatic event. The subdural collection seen during the March 2013 admission was a rare but natural process of the collections becoming autonomous and enlarging.

Dr Morrell has now seen Dr Anslow's opinion. It has not altered his own opinion.

I accept the analysis, with which all the parties concur, that whilst trauma cannot be excluded, it cannot be established on the balance of probabilities to have occurred. If it cannot be established, and thus not proved, it is not the cause.

There was one small mark noticed to D's neck on 19 February, the origin of which is unexplained. It is suggested by Mr O'Brien that the mother's suicide attempt might suggest unreported trauma. I do not think that is quite what Mr O'Brien means. I am not being critical. I think he means that the mother's mental health and suicide attempt could set the scene for circumstances in which a child came to be injured.

Miss Grief, on behalf of the mother, submits to me that I should accept Dr Morrell's view that the most likely cause for the LTEs is gastro-oesophageal reflux and that lumbar puncture is the most likely cause for the subdural collections. Dr Anslow uses the word "probable". Dr Jayamohan could not explain them. It is extremely significant that there is no other sign of brain trauma. In relation to that last point, I comment that there can be cases of inflicted head injury where there is no other obvious sign of brain trauma.

Miss Grief asks me to find that, on the balance of probability, there was a natural cause. I do not think it would be helpful for me to apply the reverse burden of proof. The local authority brings these proceedings and it is for the local authority to establish on the balance of probability that D has suffered inflicted harm.

It is quite clear to me that on the basis of this evidence, which would constitute the evidence before me at the presently listed hearing in September next, the local authority could not satisfy the court that this was inflicted injury and, through Mr O'Brien, they accept that.

In parallel with the medical investigations, the local authority has also conducted an assessment of the paternal grandmother. The assessment was glowing. I met her briefly in court last week. I thought, on my admittedly brief meeting with her, that she seemed absolutely splendid and most reliable. I understand that the local authority is extremely confident in the grandmother's ability to provide support for this young couple.

The guardian is hesitant about, and certainly does not accede to, the withdrawal application but leaves the matter to the court. The guardian is extremely concerned as to the impact of the mother's mental health on her ability to provide safe care for D. I understand that concern, but I must approach this matter on a principled basis. The first question is as to whether or not the threshold is established pursuant to section 31 of the Children Act 1989.

I am confident that the mother's mental health problems cannot prove what is otherwise unprovable. The most it can do is to set the scene to provide an explanation. Is the mother's mental health in itself a ground to find that the threshold is or could be established, and to maintain September's hearing? Miss Grief makes the powerful point that the threshold initially has to be established as at the date when these proceedings were commenced in early April 2013. At that point the mother's last self-harm episode had been in January, immediately after D's birth, and had not at that stage been the trigger for local authority formal intervention through care proceedings.

It has been put forward on the father's behalf, and it is accepted by the local authority, that the father is a protective factor. The guardian says that this is in doubt because arguments between this young couple precipitated the mother’s self-harm episodes before D was born. But those matters were not sufficient to trigger care proceedings either after D's birth.

The local authority has put in place a Child in Need Plan. There is to be a meeting later this month at which the mother's mental health will be under scrutiny. The mother has agreed to disclosure of her medical records and has agreed to transparency and to the free flow of information between the local authority and other agencies. The Local Authority after all, has statutory duties under section 17 of the Children Act 1989. The mother has assured the local authority that she will continue to co-operate. The guardian makes the valid point that this is a new approach by the mother which was not demonstrated in the past. But, as I say, that was not sufficient to trigger intervention of itself.

I recognise that in the 17 paragraph threshold document, which concentrates inevitably upon the head injury/NAI allegations, paragraphs 16 and 17 specifically refer to the mother's suicide attempt and to her mental health in general. The local authority submits to me that, in itself, and in the absence of non-accidental injury, these asserted grounds are not sufficient to satisfy the threshold, particularly bearing in mind the current level of local authority support and intervention, and that the mother's mental health has to be seen not in conjunction with but separately from the alleged injuries. I agree with that analysis.

There is no doubt that the mother has a significant mental health history. She will no doubt have to continue to take advice from the local authority. The local authority will have the capacity to intervene if there is considered to be a presenting risk to D caused in part by, or in conjunction with, the mother's and/or the father's lack of co-operation. So, recognising entirely the anxieties of this conscientious guardian, the analysis of the only principled legal position leads me to the conclusion that I could not find threshold established at the moment simply on the basis of the mother's mental health problems. In any event, the plan which the local authority has crafted together with the parents to provide support seems to me to be properly focused on the possible risks and the need for support. The mother has undergone for the first time a course of counselling, which may well provide some degree of protective factor.

The guardian is concerned that he does not have a clear understanding of the mother's psychological functioning and that he would like to have that greater understanding before he lets go of this case. My experience is that often explanations for psychological difficulties cannot be found, and I do not think it is appropriate to adjourn these proceedings for this to be undertaken.

All parties agree that this application to withdraw is governed by Family Procedure Rule 29(4) and that it is a welfare decision. In London Borough of Southwark v B [1993] 2 FLR 559, Waite LJ said:

In Re N (Leave to Withdraw Care Proceedings) [2000] 1 FLR 134, Bracewell J said:

In S (a Child) v Nottingham City Council and Others [2013] EWCA Civ, the local authority was not permitted to withdraw. However, that case was different from this, because in this case I have formed the view that there is no prospect of the local authority being able to establish section 31 on the evidence before the court. In Re S the Court of Appeal set aside permission to withdraw because the judge found that the child had suffered non-accidental injury, but had not recognised that although the pool of perpetrators was unknown, this gave rise to a welfare question of how the child was to be protected from the risk of further non-accidental injury from a person or persons unknown. I accept that that is an important and significant difference.

I have taken fully into account the guardian's anxieties. I do not criticise either the guardian or Miss Phil-Ebosie for putting them before me. But on the analysis I have conducted I do not consider that those anxieties provide the solid ground to decline to accede to the local authority's application to withdraw. Accordingly, I grant the application.