X (A Child) (No 5)

This is my fifth, and I hope final, judgment in this troubling matter. It is being handed down on 17 August 2017. My last judgment was handed down on 7 August 2017: Re X (A Child) (No 4) [2017] EWHC 2084 (Fam). I had previously handed down judgments on 12 September 2016 (In re X (A Child) (Jurisdiction: Secure Accommodation), In re Y (A Child) (Jurisdiction: Secure Accommodation) [2016] EWHC 2271 (Fam), [2017] Fam 80), on 28 June 2017 (Re X (A Child) (No 2) [2017] EWHC 1585 (Fam)), and on 3 August 2017 (Re X (A Child) (No 3) [2017] EWHC 2036 (Fam)).

In my last judgment, I recorded (para 19-21) that the plan, which I approved, was for X, as I shall continue to refer to her, to be moved on Thursday 10 August 2017 in accordance with section 47 of the Mental Health Act 1983 from ZX to ZZ, as I shall continue to refer to them. I explained (paras 22-23) the reality that NHS England was in the hands of third parties, specifically the two clinicians and the relevant Secretary of State, whose various inputs were, as a matter of law, a pre-requisite to X’s transfer under section 47, but that the hope and expectation was that X would be transferred from ZX to ZZ on Thursday 10 August 2017. I said (para 24) that it was quite clear to me that X’s interests would best be served by her proposed transfer from ZX to ZZ on the Thursday. I concluded (para 25):

“At the end of the hearing [on Monday 7 August 2017] I made an order, the most important provision of which for immediate purposes was a requirement that NHS England was to file and serve no later than 4pm on Wednesday 9 August 2017 all available documentation relating to X’s care and treatment plan at ZZ (addressing in particular the proposals for her physical transfer to the placement) or, to the extent that the documentation is incomplete, an explanation of why this is so. My purpose in making an order in these terms is obvious. If need be, and I very much hope that the need will not arise, there will be a further hearing later this week.”

On Tuesday 8 August 2017, I received from NHS England the documentation referred to in that order. Everyone agreed, as I did, that it was satisfactory. Later the same day I was informed by NHS England that the section 47 authorisation had been completed “earlier today … Therefore, everything is in place for the transfer on Thursday to go ahead.” I have subsequently been told that X was indeed transferred from ZX to ZZ on Thursday 10 August 2017 in accordance with section 47. Her detention in accordance with section 47 is therefore deemed to have commenced on 10 August 2017. I should add that there is no restriction order under section 49. This is, in all the circumstances, a most satisfactory outcome.

It will be recalled (Re X (A Child) (No 2) [2017] EWHC 1585 (Fam), paras 19, 26-28) that when I made the care order in relation to X on 15 June 2017, there was no proper care plan for her. The order I made on 7 August 2017 directed that the local authority should by 14 August 2017 file and serve its final care plan and that X’s solicitor should file and serve a final position statement on behalf of the Children’s Guardian by 16 August 2017. In the event, the care plan, dated 9 August 2017, was filed on 11 August 2017. In her position statement dated 15 August 2017, the guardian endorsed the final care plan. So do I. The guardian drew attention to various matters which the local authority needs to bear in mind and keep under review. There is no need for me to go into the detail. I agree with the guardian.

In these circumstances, the proceedings are at end, at least for the time being. In case there should be any need for further judicial involvement while X remains in care – I would hope not – the order I made on 7 August 2017 provided that the local authority’s application under the inherent jurisdiction was adjourned, with liberty to any party to restore, if need be at short notice, but that, in the event no such application is made prior to X turning 18 years of age, then the application should without further order stand dismissed as of 4pm on the day before X’s 18^th birthday. The parties also invited me, and I agreed, to direct that all further applications relating to X, whether as a minor or as an adult in the Court of Protection, should be reserved to the President of the Family Division, if practicable.

At the time when I handed down my second, third and fourth judgments, X was detained at ZX, a secure unit, in accordance with a Detention and Training Order imposed by the Youth Court. However, as I observed (Re X (A Child) (No 2) [2017] EWHC 1585 (Fam), para 5):

“The fact that she is subject to detention in consequence of a criminal conviction is, of course, no bar to my making a care order, though in practical terms my functions in relation to her placement and welfare inevitably remain largely in suspense pending her release: see Islington London Borough Council v TM [2004] EWHC 2050 (Fam), paras 17, 19, quoted in R (Anton) v Secretary of State for the Home Department; Re Anton [2004] EWHC 2730 (Admin) / [2004] EWHC 2731 (Fam), [2005] 2 FLR 818, para 39, and Re a Ward of Court [2017] EWHC 1022 (Fam), para 51.”

In the Islington case, I had been invited to make a care order in relation to a baby who was living with her mother in a prison mother and baby unit. I made a care order, and approved a care plan for the baby prepared by the local authority which, in common with the care plan for the baby prepared by the Prison Service, provided for the baby to remain with the mother in prison until she was 18 months old. But I emphasised (see paras 17, 19) that nothing I was doing could bind the Secretary of State:

“The fact is that in this unusual situation – that is where a child who is subject to care proceedings is in a prison establishment with his or her mother – neither this court nor the local authority is the sole or primary decision maker ... [I]t is for the Secretary of State alone and not for this court to decide whether or not a baby should be allowed to remain in prison with his or her mother …

... I mention those matters so that there should be no misunderstanding by anyone as to the effect of the order I am making today. What I am doing today – and all that I am doing today – is to make a care order pursuant to Part IV of the Children Act 1989 and, as part of that process, endorsing and approving the care plan promoted by the London Borough of Islington. I am not concerned today either to approve or to disapprove the care plan which has emerged as part of the Prison Service’s decision making, although if this assists the Prison Service and the Secretary of State I can say that the plan seems to me to accord entirely with the best interests of the child. More specifically, it must be understood that nothing I have said today and nothing in the order I make can in any way fetter the power of the Secretary of State, if circumstances arise which justify such a decision, to decide that mother and baby should be separated before the baby has reached the age of 18 months.”

Exactly the same practical consequences flow, and for precisely the same reasons, so long as X remains subject to detention in accordance with the provisions of the Mental Health Act 1983. The decision as to whether X should remain at ZZ is one for the responsible clinicians or the First Tier Tribunal. But that is no reason why I should not, as I do, approve the care plan put before me by the local authority.

I add this, not that the local authority needs reminding: X, as the subject of a care order, is entitled to enjoy, both now and, in accordance with the ‘leaving care’ legislation, after she leaves care when she reaches her 18^th birthday, all the benefits which will accrue to her as a looked after child. So, the local authority will remain under a duty to this very vulnerable young woman even after her 18^th birthday. Given her age, it is very important that the ‘leaving care’ planning for X begins immediately. This is a matter to which the guardian rightly drew attention. It is critically important.