Twomey, R (on the application of) v Calderdale Metropolitan Borough Council [2004] EWHC 1998 (Admin)

Case No CO/5006/2002

[2004] EWHC 1998 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Thursday 12 th August 2004

Before

THE HONOURABLE MR JUSTICE STANLEY BURNTON

Between

R (On the application of Louise Twomey acting by her litigation friend Robert Twomey)Claimant

Calderdale Metropolitan Borough CouncilDefendant

(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7421 4040, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

Jan Luba QC (instructed by Ridley & Hall) for Claimant

Roger McCarthy QC (instructed by the Department of Law & Administration, Calderdale MBC) for Defendant

Judgment

Introduction

[1]This case concerns the welfare of Louise. She was born on 30 December 1986. She will shortly cease to be a child. She nonetheless has a continuing need for special care and education. It is common ground that she needs suitable residential provision, and has had that need for a considerable time. Two diagnoses of her mental condition have been made, the first, made by Dr Annie Holmes, that she suffered from reactive attachment disorder and ADHD (Attention Deficit Hyperactivity Disorder), the second, by Ms Olwyn McCubbin, a child psychologist, in June 2001, that she suffers from pathological demand syndrome. She also suffers from epilepsy, but it is controlled with medication. Ms McCubbin’s report described pathological demand syndrome. “This variant Professor Newson describes as ‘Pathological Demand Avoidance Syndrome’, for which title she says she has been ‘apologising for ever since’ but which describes the major problem which the carers of these children face due to their obsessional avoidance of the ordinary demands of everyday life. PDA children she describes as ‘reminding people of autism while in many ways showing quite a different picture, and indeed they are not usually thought of as non-communicating children’. She further describes them as presenting with ‘extraordinary difficulties and often create extreme stress and even panic in their carers, especially once they get to school. One could say that PDA children do not make sense to the people around them because the demands of the ordinary world don’t make sense to them. Resistance to demands is the salient feature of this variant disorder. An autistic child placed under pressure will behave in an asocial way by withdrawing, or ignoring or using stereotypes (e.g.: rocking or flapping) to place distance between themselves and the source of pressure. A child with PDA will use social skills to avoid demands. Professor Newson describes this as a ‘single-minded talent which PDA children bring to circumventing anybody who tries to get them to do anything’. Dramatic failure on entry to school is typical of children with this disorder since the ordinary group-orientated demands of the school disable the PDA child. Strategies which PDA children may use to avoid demands are diverse. Listed as examples are ‘ignoring, diverting attention, delaying tactics, excuses, already busy, ‘can’t do it’, giggling, flatly refusing, disruptive behaviour, role reversal, aggression, monologue, parrying, disengagement, rational explanation, boredom and humour’. The robust employment of these strategies mask the severity of the pressure that the child feels under and the ‘fragility and vulnerability behind the need to use them’, if their ‘bluff’ is called. Professor Newson describes how the children became agitated and panicky and she believes that it is in deference to this reaction that carers make heroic adaptations to the children’s behaviour. ‘Surface sociability’ is described as a feature of this syndrome. PDA children are very aware of other people because they are alert to the possibility that demands may be made of them. They can use social graces to great effect and are frequently described as ‘charming’. This sociability is described as ‘skin deep’ and when not serving the purpose of demand avoidance can become inappropriate. Negotiation with peers is difficult for these children, and their extreme behaviour found to frighten other children away. The mood of PDA children can be labile and their sociability can become ambiguous. A hug can become a strangle and a kiss may become a bite. Their moods can change too quickly to be anticipated and people are taken aback by the force of their behaviour. Most children accept that there are boundaries of acceptable behaviour and can be taught where those boundaries lie. PDA children have no such awareness and in pursuit of ‘demand avoidance’ will display extreme disinhibition with parents or strangers alike. Removal of clothes, shouting obscenities, screaming, physical aggression are all described as frequently encountered responses. A lack of sense of personal identity is part of the PDA syndrome. An aspect of this is that the child usually fails to identify themselves as a child within a group of children. They will generally interact with the adults and are believed not to understand that there is a social division between adults and children. They will often be bossy with carers and show levels of assertion that most children generally do not. They have difficulty in understanding the ‘personhood’ of the other and parents are reported to doubt how important they are to their child. As a result of poor sense of personal identity, PDA children have little sense of pride or shame, of accepting responsibility or accepting social obligations. … The prognosis for children with PDA as adolescents and young adults is uncertain. Systematic observation of older children is being pursued but management is acknowledged to be particularly problematic because behaviour modification techniques are not usually successful. Negotiation and contractual techniques tend to result in better success. However, Professor Newson considers the difficulties which families experience caring for PDA children, require a very great deal of support over a long period of time.”

[2]These proceedings were begun as long ago as November 2002. Louise alleged that Calderdale had failed to provide any residential placement and was in breach of its duties under the Children’s Act 1989. The case has come before the Court on a number of occasions since, being adjourned on each occasion on the basis that the parties might agree the way forward, sometimes with directions being given to assist that process.

[3]I heard argument in this case on 2 August 2004. The shortage of time resulted in argument being restricted to the immediate issue, namely whether Calderdale’s present refusal to place Louise at Hesley College (“Hesley”) is unlawful, and whether an order should be made requiring Calderdale to place her there. Calderdale (“Calderdale”) agrees that a residential placement is required, but wishes to place Louise at a residence called Insight in Salford. Louise presently refuses to go to Insight. The difficulties caused by the shortage of time were exacerbated by the fact that evidence had been served very recently, some of it while Helen Smith, Calderdale’s Operations Manager responsible for Family Support and Child Protection who is responsible for Louise’s case, was on holiday, and each side’s evidence had not been fully considered by the other.

[4]A decision on Louise’s placement is urgent. She has been living at home since she left Focus Arc in January 2004. That is unsuitable for her. It is also placing great stress on her family. Her sister, who is about the same age, is very disabled, and requires 24-hour care.

[5]On 3 August I announced my decision. I determined that Calderdale’s refusal to place Louise at Hesley is not presently unlawful. I said that I would give the reasons for my decision subsequently, and I now do so.

Louise’s history

[6]I can take most of Louise’s history from Mr Luba’s skeleton argument (which I have edited). For this purpose it is not necessary to resolve such factual issues as there are between the parties relating to this history, and I include it by way of background.

[7]Louise was removed from her natural parents by Bradford Social Services. At the age of two she was placed with Mr and Mrs Twomey and was later adopted by them. She thereafter lived with, and was raised by, her adoptive parents at their home near Halifax (West Yorkshire) and attended local mainstream schools at primary and secondary level.

[8]Louise, throughout her childhood, has presented a range of serious problems with which her parents have felt increasingly less able to cope. Mr and Mrs Twomey have an older daughter (Rebecca) who is very seriously disabled. She lives at home with the family and requires full time personal care. Over the past six years, at least, Mr and Mrs Twomey have been convinced that Louise’s needs could only be met in an alternative residential setting. Because those needs include educational needs, the parents thought that the appropriate setting would be a residential school.

[9]In early 1999 (when Louise was 12) Dr Annie Holmes, a local NHS Trust’s child psychologist, made the diagnosis of Reactive Attachment Disorder referred to above. She recommended that Louise be assessed for placement at a residential facility known as “Keys”. Louise was assessed and that assessment recommended a placement.

[10]No residential placement had been made by November 2002, when these proceedings were begun, nor by 12 December 2002, when permission was granted.

[11]However, over the Christmas break (2002-2003) Louise was placed by Calderdale and stayed at the Focus ARC Centre. That gave an opportunity for Mr and Mrs Twomey to have a respite break in their care for Louise (and Rebecca) and also provided the Focus ARC Centre with an initial opportunity to consider Louise’s suitability for placement there.

[12]By January 2003, Calderdale focused solely on provision at the Focus ARC Centre. The ARC Centre asked for a decision by early February 2003 as to whether Louise would be placed there. Any such placement would be for an initial assessment period of three months.

[13]Mr and Mrs Twomey expressed their concern that the placement would not be satisfactory because it made no educational provision for Louise on site and Calderdale was not proposing to organise any educational provision. No such educational provision had been organised by the deadline date in early February 2003 by which the ARC Centre required a decision as to whether the initial assessment opportunity would be taken up.

[14]Louise’s parents felt that, although the ARC Centre was unsatisfactory, it was the only option for an immediate residential placement (of any sort) being presented to them. Calderdale’s own view was that a move to Focus ARC would be ill advised. But, Mr and Mrs Twomey had “reached the end of their ability to look after Louise”. Accordingly, they accepted the temporary placement and L began her three-month assessment as a resident of the ARC Centre on 17 February 2003, returning home at weekends. Calderdale had made no arrangements with the local education authority in the Focus ARC’s area. That education authority (Stockton-on-Tees BC) decided in February 2003 that because Louise was in her last academic year it would not be possible to undertake an assessment of her educational needs. It took the view that as she had reached the age of 16 and the period of compulsory educational provision would come to an end before an educational assessment could be carried out, none should be conducted.

[15]In those circumstances, the only educational provision made for Louise while at Focus Arc was temporary part-time educational support at an off-site centre to which she travelled from the ARC on two days each week. Because Louise returned to the parental home at weekends it was not possible for her to attend the off-site educational support facility for even the minimum number of hours necessary to satisfy the requirements for full-time education. No arrangements were put in place for full-time education for Louise in the Stockton area. From May 2003 she refused to attend the off-site education centre.

[16]Louise in fact remained on the roll of Calderdale’s local maintained secondary school (in Halifax) and it was anticipated she would sit public examinations at the end of the summer term in 2003. In the event the exam ‘venue’ was transferred to Stockton but Louise refused to take the examinations while still at Focus ARC.

[17]This claim was first listed for trial before Newman J on 10 April 2003. Before hearing argument, Newman J indicated that he considered that no final consideration could properly be given to the matter until at least the completion of the three-month assessment period that Louise had begun at Focus ARC in February 2003. He stood the matter over with detailed directions as to disclosure of documents and further evidence.

[18]The three months assessment period at Focus ARC was completed in May 2003. A review meeting took place as scheduled on 20 May 2003. The meeting was agreed that Focus ARC could not meet Louise’s needs in the medium or longer term. However, no alternative provision having been made by Calderdale (even tentatively), Louise remained at the ARC.

[19]In June 2003 an independent Educational and Child Psychologist (Mr Terry Akerman), who had been jointly instructed pursuant to the Court’s directions, presented his first report on Louise. Having been jointly instructed, at the instance of the Court, I give considerable weight to his views. He made the following comments:

“My attempts to engage Louise have not been fruitful. We are little wiser about her wishes or perceptions, except that she would have liked to stay at The Arc. We may fairly assume that she has made relationships with the staff in the few months she has been there. The scale of her difficulties is significant. Her resistance is both odd and persistent. She has a range of well-practiced tactics to avoid cooperating. Her clinging to staff, seen during assessment, does not have a sense of anxiety about it however; it felt more like a ploy to remain in control.”

He described Louise as untypical of the clients at ARC and therefore a “high flyer” there. His conclusions included the following:

“The chief area of concern is Louise’s emotional, social and behavioural profile. Now in mid adolescence, she still has minimal relationships with other young people and certainly no mutual relationships yet. She needs firm-but-fair management. She had settled and functioned reasonably well in the relatively undemanding routines at The Arc, but with generally high (but not continuous) levels of input. The level of attention available is probably a factor in her having enjoyed her placement there. There are now signs that expectations of compliance are eliciting more resistance, as experienced elsewhere. Overall, her difficulties are developmental and are severe and complex. … I take a long-term view of her development. It is important to select the best and most flexible provision to meet her emerging needs until she is, say, 25 years of age, rather than make several changes over a few years, if that can be avoided. I recognise that it may be difficult to find such a placement.”

[20]Mr Ackerman set out what he saw as Louise’s educational needs. He put as the first of these as follows:

“Louise needs to: 55. develop better interpersonal skills, which she can use more consistently, with a wider range of people, including peers; 56. begin to learn to behave reciprocally and to accommodate reasonable demands from other people; 57. learn to negotiate her wants and needs by positive means; 58. learn to complete tasks that are within her capability, without supervision; 59. acquire more personal independence, for example planning a meal, shopping for food and preparing it; …”

[21]With regard to provision, he advised:

“64. Louise’s combination of some degree of learning difficulty and emotional and behavioural difficulties including non-compliance will necessitate well organised, structured and consistent provision, throughout the year; 65. The ideal provision would be a single establishment with the flexibility to provide an individualised, holistic education and care, which would comprise: 66. integrated domestic and learning plans which form a ‘seamless garment’; 67. discernible objectives, planned, reviewed and revised on a regular basis; 68. access to on-site and off-site provision (such as local social education and further education facilities); 69. availability of therapeutic advice or input; and 70. the ability to link positively with Louise’s family. 71. If that cannot be found, then an establishment that could provide care and personal development (to a similar standard) all year, but had good links to competent educational provision externally, would be the only other option. I do not consider that a 38 week year, with 14 weeks at home, or in only marginally coordinated supplementary provision, would be desirable.”

[22]In an addendum, he referred to ARC’s management of Louise:

“I spoke on the telephone today to M/s Brady, the term leader/keyworker. She described an assertive approach to their managing Louise – essentially a firm-but-fair one, which does not accept negative behaviour but does use praise for cooperative behaviour. If her behaviour is unreasonable then she has to accept the consequences, such as being ignored, when, for example Louise does not make eye contact, or answer a question. Humour is used sometimes to avoid a difficulty.”

[23]A meeting was held on 19 June 2003 at which Mr Akerman was present. He said that his tests during his first meeting with Louise indicated that she had mild to moderate learning difficulties, and lent support to the view that she had more ability than at times she was prepared to demonstrate.

[24]Calderdale accepted Mr Akerman’s views at a meeting on 2 July 2003 and agreed that Louise should be placed in a full time residential establishment capable of meeting her holistic needs. At the review hearing before Newman J on 11 July 2003, the Calderdale accordingly gave an undertaking that it would (subject to availability) secure an appropriate residential placement (subject to availability), as advised by Mr Akerman, on or before 1 September 2003.

[25]By mid-summer 2003 it had become plain that three residential placements (all originally identified by Louise’s father) were potentially suitable. These were:(a) Cintre Community (Bristol);

(b) Robinia Care (Staffs);

[26]As required by the Directions given earlier by the Court, the jointly instructed Educational and Child Psychologist (Mr Terry Akerman) considered the first two options in his Supplementary Report dated 30 July 2003. He discounted the second option as inappropriate and recommended that possible placements at the first be pursued.

[27]Mr Twomey visited both Cintre and Hesley and agreed that they could each offer potentially appropriate placements for Louise. He also agreed with Mr Akerman that the other potential placement (Robinia) was unsuitable following his own visit to it. By August 2003 Calderdale had produced a statement of special educational needs for Louise emphasising the importance of education to her.

[28]An all-party meeting on 9 September 2003 reached agreement that these two placements, Cintre and Hesley, be further considered and that(1) both be invited to send their staff to visit and assess Louise and then

(2) Louise should visit both establishments. Helen Smith agreed to make the necessary arrangements.

[29]Staff from each of the two units (Cintre and Hesley) visited and interviewed Louise in November 2003. Each was satisfied that it could make appropriate provision for her and each offered her a place. One of the differences between the two was (and is) location (and consequent difficulties in Louise travelling to and from her parental home to visit her parents and sister). Cintre is near Bristol in the South West of England. Hesley is in Yorkshire and much nearer Louise’s parental home.

[30]Louise initially declined to visit Cintre. Her father arranged a visit to Hesley which took place on 13 December 2003. He stated that he had no objection in principle to either placement for his daughter, although he would prefer her to be placed at Hesley because it would be easier to maintain contact if she were there and that if Louise chose Cintre in preference he would accept that.

[31]Calderdale considered that Cintre would be the more appropriate placement. Mr Akerman provided further reports. His report dated 11 November 2003 contains a helpful comparison of the 2 establishments. I refer in particular to his summary of the respective populations: Calderdale considered that Cintre would be the more appropriate placement. Mr Akerman provided further reports. His report dated 11 November 2003 contains a helpful comparison of the 2 establishments. I refer in particular to his summary of the respective populations: HESLEY CINTRE Ability/ communication skills of population Autistic spectrum disorders i.e. Social & communication disorders; severely challenging behaviours; severe learning difficulties. Many non-communicating (NCS) report). Ability levels appear generally low. Communication much in evidence. More able overall; mild to moderate learning difficulties; challenging behaviour. Social functioning observed between service users. Sociability of population Autism is a biological disorder whose main affects are social. Social functioning more normal.

[32]His summary and advice was as follows:

“21. The main question, therefore, is should we trade close parental involvement for what is, potentially, the more restrictive environment i.e. Choose Hesley rather than Cintre. 22. Hesley would provide adequate care, but not the optimum social context. There would be very high staffing levels and significantly disabled fellow service users, which arguably would have the potential of restricting Louise’s environment. 23. Cintre, however, would provide both care and a more appropriate social context. It is likely that the educational needs that I was asked to identify, originally, would be more closely met. 24. Mr and Mrs Twomey’s wish, to remain in frequent contact with their immature daughter, who is 17 next month, is entirely understandable however. 25. Should Louise’s parents and indeed Louise herself reject the possibility of placement at Cintre a compromise would be necessary. In that event I could only suggest that Social Services should negotiate with Hesley a plan for Louise’s care and development which endeavours to advance Louise’s functioning in light of her relatively developed capabilities and potential. If that is not part of the process Louise, inevitably in my view, would become embedded at Hesley for the foreseeable future. Even with such plan, there is still the prospect of this young person (who attended mainstream schools, albeit with difficulty and was doing coursework for some elementary public examinations, and who then attended an anxious and pregnant schoolgirls’ unit) living with a significant disable population and not developing optimal independence and social skills. She would have, however, more parental support.”

[33]By “embedded” I understand Mr Akerman to mean that there was a real risk of Louise becoming institutionalised at Hesley. That, of course, would be a regrettable development for someone whose intelligence is such as to make independent living a real possibility.

[34]Mr Akerman confirmed his advice that Cintre was more suited to Louise’s developmental needs in an email to Helen Smith dated 2 December 2003, in which he also supported the idea of her and her parents flying to and from Bristol. Nonetheless, by letter dated 9 December 2003 Louise’s solicitors requested Calderdale to agree to her being placed at Hesley as soon as possible. The points they made included the following:

“(1) Louise will not agree to go to Cintre, either to visit or on placement. Sharon Stafford tried to persuade Louise to visit Cintre at the end of November 2003, and advised that she could fly to Bristol. Louise refused and would not be persuaded. Louise is vehemently opposed to travelling to Cintre by air or rail. (2) There is currently no direct flight between Manchester and Bristol. Southwest Air has firm proposals to operate a direct service between Bristol and Manchester from March 2004, but it is not certain whether and for how long the route will operate. … (5) Since Terry Akerman visited Hesley, Hesley has opened new additional provision on site which is aimed at meeting the needs of children whose needs are similar to Louise’s. The report from Hesley had gone some way to addressing the reservations expressed by Terry Akerman in relation to Hesley.”

[35]In a document entitled “Psychologist’s comment on placement dilemma” dated 15 December 2003, Mr Akerman stated:

“Louise has repeated on many occasions that she is not part of the decision making process about her own future. It is not clear to me that this immature young woman has been supported to the point where she could contribute to an informed discussion about future placements. I have formed the impression moreover that it would no longer be fruitful to persist with that aim. I have expressed my view as to which setting would be likely to provide the more appropriate experience. I am sure that parental antipathy to a placement at Cintre will not change. They are adamant that Hesley is acceptable, Cintre not, because of distance. As a placement, Cintre is unlikely to work without parental support. Although Louise would have greater potential compared with the population at Hesley, that placement would not harm her at all and would be able to provide positive experiences. If they could maintain reasonably high expectations, Louise might have a greater chance of more independent living.”

[36]At the hearing on 16 December 2003 Newman J declined Calderdale’s invitation to bring the proceedings to an end and acceded to Louise’s application for a further short adjournment of the trial so that the placement question could be further considered. The matter was listed to be restored in January 2004.

[37]Immediately prior to the hearing in December, Calderdale had requested detailed material from Hesley about the provision it would be able to make. That information was provided on 16 December 2003. On 16 December 2003 the parties also worked together on an arrangement for Louise to visit Cintre. Regrettably, in the event only a truncated visit took place on 18 December 2003. On 27 December 2003 Louise expressed the view that she wished to be placed at Hesley. She would not agree to make a further extended visit to Cintre and said she did not want to be placed there.

[38]No placement decision having been made, Louise returned to Focus Arc in early January 2004 after a Christmas break at home. But after her next weekend home visit she decided that she would no longer attend that Centre and she refused to return to it. She has since remained at home. Her parents are unable to meet her needs and it is not their wish that she remains at home.

[39]Louise’s parents indicated by solicitors letters of 13 and 14 January 2004 [2/280 + 2/281] that they: were agreeable to further visits by Louise to both Hesley and Cintre (the latter having extended the availability of its placement); were anxious that the placement question be resolved co-operatively; and were prepared to meet with Calderdale to ensure these objectives were achieved. Calderdale agreed to arrange the proposed further visits but none had been arranged by 3 February 2004 when the parties next met. Louise attended that meeting. She agreed to make a further visit to Hesley on 18 February 2004 but refused to re-visit Cintre or return to Focus Arc.

[40]The further visit to Hesley (with Calderdale’s officers and Louise’s parents) took place as scheduled on 18 February 2004 and the parties were due to meet again on 25 February. Illness caused that meeting to be postponed to 12 March 2004. At that meeting, Sharon Stafford of Calderdale mentioned her concerns about Hesley. The minutes record the following:

“ Her impression of the hall where Louise would be living until she reached 18 was poor. • There are locked doors within and at the entrances to the building. • Carers were sat around on the floor within the building. • There was a smell of defecation • The rooms Sharon was shown had little evidence they had been personalised for the young people. Sharon had concerns also about the young people Louise would be living with. There would be four young people at Hesley who would from an appropriate peer group, however the majority of the other young people had complex needs and would not offer an appropriate peer group, as highlighted in Terry Akerman’s report. Mr and Mrs Twomey did not accept Sharon’s concerns. It was agreed that a meeting be arranged to include those invited to this meeting and also a representative to Hesley. Helen Smith advised that in addition to the issues raised by Sharon she would wish to discuss further with Hesley how they would meet Louise’s needs and in particular support her into an appropriate level of independence. Helen advised that Hesley had not yet provided a contract and this would need to be considered by the Contracts Officer and Legal Officer for the Council. Helen further advised that her understanding was that a placement would not be available at Hesley until late May at the earliest. Those present confirmed this.”

[41]Calderdale indicated that although its own preference remained for Cintre, in the light of the wishes of Louise and her parents for a Hesley placement, and of Louise’s refusal to revisit Cintre, Calderdale would pursue a placement at Hesley. The next agreed stage was for Calderdale to seek clarification from Hesley on certain matters before a further meeting of the parties, with a Hesley representative present, to finalise matters.

[42]However, in a letter dated 23 April 2004, Calderdale indicated that, for reason set out in the letter, further information was being sought from Hesley and that it was “exploring alternatives” to Hesley. The projected final meeting was convened on 28 April 2004. Calderdale indicated that the invitation to the Hesley representative to attend had been withdrawn, that further information was being sought and that there were concerns about the fee being sought by Hesley and the availability of funding.

[43]In those circumstances, the hope that this litigation might conclude before the hearing fixed for 30 April (with the approval of a Hesley placement) slipped away. Directions were given by Mr Justice Elias on that date to bring the matter on for trial in terms agreed by the parties.

[44]Delays on the part of the Legal Services Commission prevented Louise from complying with agreed directions but Louise’s solicitors continued after 30 April to press Calderdale to take up the Hesley placement option or at least make and notify a reasoned decision not to do so. Calderdale did not respond.

[45]The matter was listed before Harrison J on 28 June 2004 for trial. On the last working day prior to the hearing, a witness statement of Helen Smith was filed indicating, among other matters, that(a) there was no place for Louise at Hesley and

(b) there was a place available at Cintre and Calderdale was now again proposing to place Louise there. The statement also put forward material concerning another establishment, known as Insight, in Bury, near Manchester. The first of these matters was in contradiction to information later provided by Hesley. The hearing was adjourned on the morning of 28 June so that the matter of the availability of a Hesley placement could be resolved. The position was “clarified” in the afternoon of 28 June when Hesley indicated that it was not actually holding a place for Louise but would be able to ensure a place from October. If a casual vacancy arose meanwhile and Calderdale had confirmed its intention to contract with Hesley, that place would be made available to Louise. Louise sought and obtained from Harrison J an adjournment to the following morning so that her position might be considered in the light of the new information.

[46]The same afternoon, proposals were received from Calderdale as to how Louise’s wishes and feelings might best be ascertained in relation to both Cintre and Insight and as to how visits to those premises might be arranged. Louise’s parents were concerned that exchanges in court, about which they had been informed, suggested that Calderdale believed that Louise’s own views might be being coloured by those of her parents. Louise’s parents agreed to accept Calderdale’s proposals so that it would be possible for Louise to visit and consider both Cintre and Insight and to express her wishes. The arrangements were incorporated into an agreed Order and the trial was adjourned with directions on 29 June to enable those matters to be seen through.

[47]Mr Twomey’s most recent witness statement gives his account of what her parents have done to facilitate consideration by Louise of both Cintre and Insight since the last hearing. It indicates that they took considerable measures to encourage Louise to visit Cintre and Insight and to facilitate an independent assessment of her wishes and feelings. In the result, Louise has maintained her refusal to revisit Cintre, has visited Insight and made plain that she will not be placed there, and has again expressed her wish to be placed at Hesley. He described her brief visit to Insight, her refusal to make a sensible inspection, and concluded:

“Mrs Twomey and I have discussed the placement issue with Louise as far as possible after the visit. Louise has explained that she refuses to be placed at Insight because it is too small, she does not like the location, and there is nothing to do. Louise states that she wants to be placed at Hesley because she can go to the college there and also work in the shop. Louise also talks about the activities at Hesley including the on-site gym, fruit and vegetable gardening, swimming, off-site activities, the weekly disco, and the drama group which involves the local school. If a situation was engineered to get Louise to Insight for a placement there, there is a distinct possibility that she would abscond. Although Louise is a very vulnerable young woman, she may be able to find her own way home. Louise is determined that she will not be placed at Insight and I do not think it is possible for Mrs Twomey or I to persuade Louise to be placed at Insight. Louise’s views in relation to placement are completely entrenched.”

[48]Mrs Smith’s Witness Statement indicates the steps Calderdale has taken since the last hearing and communicates a decision that Calderdale’s preferred placement option, notwithstanding Louise’s wishes and feelings, is at Insight. It does not have the geographical disadvantages of Cintre: indeed, it is closer to the Twomeys’ home than Hesley. Mrs Smith said; “Although Louise is nearly 18 her understanding is significantly limited. This is because of her background, personality, characteristics, family influence and limited opportunity to receive and be guided by independent advice. It is clear to me that she does not really understand the pros and cons of the establishments nor the implications of the different types of placement for her future. I have to say that the information to date leads me to the conclusion that Mr and Mrs Twomey have not fully grasped the potential disadvantages to Louise of Hesley. It appears that they may have a different view of the extent of Louise’s limitations to that of the professional workers who have provided assistance to date. … I have explained in my previous statement how I and other professionals believe that Louise’s expressed opposition can and should be handled. In that way I have tried to give as full an explanation as possible not simply to explain the position to the Court but also to provide appropriate information to Mr and Mrs Twomey. I hope that the court will accept from what has been done both before and after last hearing that Calderdale is fully committed to making the right option for Louise a practical reality. … I have already explained in my previous statement and my previous proposal how much opportunity Mr and Mrs Twomey have to encourage Louise towards independence. The choice between Insight and Hesley is a good example of a greater and lesser degree of independence. I would hope that the nature of that choice is now apparent. … Although I am conscious that it will probably be said that Louise is opposed to all placements except Hesley I have looked at all the information to date about how she reacts to firmness, positive encouragement and diversion from a fixed viewpoint. There is a good deal of information that if she is allowed to avoid making choices or taking positive steps then she will do so. Louse is potentially biddable and a successful outcome needs the cooperation of all the adults with Louise’s interests as the sole focus. Mr and Mrs Twomey’s stated position is that they will not obstruct an appropriate placement and I would propose to act on the basis of that position. Insight will have prepared an individual care package for Louise prior to the hearing of the 2nd August. There would then be a planned series of introductions with her meeting staff from Insight and then moving to the facility. The process can start straight away. I believe that a placement at Insight will be one which is best placed to enable Louise to achieve her full potential as an adult in society. It is the best fit with her overall needs; it is near to her home. If she is allowed to go there and to become part of the life of the establishment she will benefit and gain in confidence and ability. In these circumstances and given all that is known to date the Authority believe that the best obtainable option for Louise is a placement with Insight in Bury.”

[49]Ms Orlinski, a social worker with Calderdale, said:

“All the planning put in place to encourage Louise to effectively participate in the decision making process has not been successful. Louise presents as a complex young woman who requires support and encouragement if she is to develop to her full potential. Currently Louise clearly states what she wants, but is unable to reason her needs or apparently to grasp the options. Louise’s refusal to take an active and informed part in the visits to identified placements and discussions highlight her lack of understanding and ability to make the decisions needed regarding all future planning. The Children Act and social work practice emphasise the need to work in ‘partnership’ with parents. However my recent contact with Mr and Mrs Twomey gave me a distinct sense that they were covertly hostile towards Social Services, if my sense is correct then this raises concerns regarding how this is making Louise feel and difficulties which professionals face when offering Louise the opportunity to reach some level of understanding. In conclusion it is my opinion that it is very important that Mr and Mrs Twomey should work in partnership with all professionals. Louise will be expected to feel fearful and therefore it is important that the adults in Louise’s life help her to come to terms with her current situation. It is my professional opinion that Louise would greatly benefit from living at Insight who would promote her personal development and her life chances.”

[50]I also refer to paragraphs 3 (c) to (e) of the witness statement of Sharon Stafford, the allocated social worker for Louise. At paragraphs 4, 5 7, 8 and 10 she said:

“In my experience, it was evident while Louise was at Focus Arc Centre that Louise is biddable. She often presents as reluctant to do things which are in her best interest; i.e. go out, wash, mix with others; however, she is soon talked around with a positive and consistent approach. Louise has expressed a view that she wants to go to Hesley and has consistently presented as not wanting to go to the Cintre Community and more recently to Insight. However, when Louise did visit Cintre, the feedback from Jackie Mears: the manager who assessed Louise as suitable for Cintre and who also showed Louise around the Cintre Centre, was that Louise presented very differently at Cintre to how she did during her visit to Louise at home. At home, Louise was reluctant to engage and quite distant, she was clearly curious though. At Cintre, Jackie reports that Louise was wary initially but later became quite animated and clearly enjoyed being there. Jackie stated that she was of the opinion that Louise would like to stay longer. … It is my opinion that Hesley could meet Louise’s needs however; I have previously outlined my reservations around this resource. It is my belief that Louise’s needs would best be met within a community based resource. This view has been reinforced by Judy Noble of Hesley College and Jackie Mears of Cintre Community, with whom I have discussed the merits of their respective placements. The view of Terry Ackerman, Psychologist, was clearly stated at the meeting of 22nd July 2004 that he is of the opinion that Insight would best meet Louise’s needs. … I consider Insight to be the best placement to meet Louise’s long-term needs. These, the contents of my statement, are true.”

[51]Mrs Smith made a further witness statement. Her stated conclusions were as follows:

“My general comments about much of Mr Twomey’s statement is that it confirms an impression that while the court case is carrying on the flow of information to social services about what is happening with Louise is severely restricted so that information appears when it is needed for a court statement but not before. Social Services Officers have been asked to make contact through Mr and Mrs Twomey’s legal advisors and not contact Mr and Mrs Twomey direct. This therefore prevents Calderdale from carrying out its role in an effective way. The litigation focus (particularly in relation to Hesley) has been unhelpful to co working. It has I believe stood in the way of Louise being allowed to go to the type of establishment which would be best for her. The decision that Louise would best placed in a residential setting is partly because of the difficulties Mr and Mrs Twomey have had in coping with her (and given the pressures which Rebecca’s care imposes). I believe that part of the message of Mr Twomey’s statement is that it confirms that they need her to be supported, advised and cared for by people who have the right professional skills. This was evident in the progress made whilst Louise was at Focus Arc. Any move away from home requires that Mr and Mrs Twomey step back and allow others to take the necessary steps. As I have pointed out in my 27.7.04 statement I would propose to act on the basis of accepting their statement that they will not obstruct an appropriate placement. If they are now prepared to work outside of a litigation format and on a basis that they will implement qualified professional advice then I believe that with preparation a successful placement at Insight can be achieved. Mr Twomey has expressed his opinion that if placed at Insight there is a distinct possibility she could abscond. Based on all of the available information and professional advice I do not believe that his is a prediction which has any identifiable likelihood. I am not aware that this has ever been a feature of Louise’s behaviour or that any part of the records supports this as a strategy of Louise’s. Any risk aspects would anyway be at the heart of care planning. I cannot therefore support a view that this is a significant risk. I think Mr Twomey’s concern starts from the wrong point because it does not take account of the work that can be done with Louise if permission is given. Part of the exercise now for the professionals is to help Louise to take control of aspects of her life in a positive way. I have now had the opportunity to consider the Initial Assessment of Louise provided to me by Insight on the afternoon of 30th July. I would ask the Court to read the assessment. I am impressed by its contents. It is a detailed analysis of Louise’s needs and how Insight would seek to meet Louise’s needs and is in marked contrast to the very basis care plan provided by Hesley on which I have commented in earlier statements. The Insight assessment further reinforces my opinion that Insight is the most appropriate placement for Louise. This forward-looking plan is a great improvement on the limited goals which Louise had had through this year so far. I have had a summary of the basis on which the Insight option is said to be unlawful. My comment is that I believe that Louise’s wishes need to be and can be handled differently, that she does not have an understanding of what is involved and that with suitable preparation, professional support and parental cooperation a successful placement can be made. I do not believe that the outlined absconding option is at all likely. Louise’s education needs have moved on from last year. Her GCSE chances were stopped by the family discussion about non attending. Her educational needs are now as advised by Mr Ackerman and the Council is following his advice. At the meeting on 22nd July Mr Ackerman reported: “As far as the wider issue of personal development the unit has session plans/service plans. They individualise what would be available according to the service users needs and can provide college support or other support e.g. distance learning. The young man I spoke to was doing a course. In the long term Insight intends to get registered with the Learning and Skills Council to provide a learning environment but cannot guarantee as they are in the very early stages. Taking what is available currently there is a satisfactory living environment with planning and review in place and the opportunity to use the resources of the wider environment appropriately.”

Mr Wilson asked Mr Ackerman how Insight would meet Louise’s educational needs. Mr Ackerman answered: Going back to my report Louise has developmental needs in the broadest sense. The principle concerns must be in relation to her ability to act appropriately with people (learning to accept and express demand) An educational context is one in which one may learn and apply these skills” Insight address this in their assessment:

“More formal educational goals should be planned with her/people who know her best as they will need to be personally meaningful to harness any natural motivation. Once the tasks arising from the goals have been identified they should be approached as for other task demands.”

I am aware that one young man is leaving Insight in August to take a place at University. I believe the ethos of Insight is to help young people fulfil their potential and have no concerns regarding their ability to develop appropriate plans for Louise’s further development.” “As far as the wider issue of personal development the unit has session plans/service plans. They individualise what would be available according to the service users needs and can provide college support or other support e.g. distance learning. The young man I spoke to was doing a course. In the long term Insight intends to get registered with the Learning and Skills Council to provide a learning environment but cannot guarantee as they are in the very early stages. Taking what is available currently there is a satisfactory living environment with planning and review in place and the opportunity to use the resources of the wider environment appropriately.” Going back to my report Louise has developmental needs in the broadest sense. The principle concerns must be in relation to her ability to act appropriately with people (learning to accept and express demand) An educational context is one in which one may learn and apply these skills” “More formal educational goals should be planned with her/people who know her best as they will need to be personally meaningful to harness any natural motivation. Once the tasks arising from the goals have been identified they should be approached as for other task demands.”

[52]There was an unannounced inspection of Insight by the Commission for Social Care Inspection. The Inspector’s summary includes the following:

“Insight provides a high standard of decoration and furnishing. The atmosphere at the Home is relaxed and friendly and the environment warm and comfortable. A thirteen-week assessment period is undertaken prior to admission. Detailed service user plans and risk assessments are in place. During the inspection, the service users consulted were highly complimentary about the care and support provided. The inspector observed a good rapport between service users and the staff team. Access to appropriate healthcare resources is available. No formal complaints have been received by the NCSC. Staffing levels are well above agreed requirements.”

Staffing levels are well above agreed requirements.”

[53]Mr Akerman reported on his visit to Insight at a meeting on 22 July 2004 at which Louise’s parents and solicitor were present. He was very positive. He said (and later confirmed this in writing):

“TA – Insight was a refreshing example of a good environment. The immediate impact was the quality and size of the living space and the wholesomeness. I talked at some length to the manager, Wendy Shepherd and went through documents looking at examples of service user plans. I talked to Alan Rudman, Psychiatric Nurse – Cognitive Behavioural Specialist. This inspired confidence in me in that they could provide an appropriate behavioural response. I since looked at the last unannounced inspection report which were mainly 3’s [standard met] and 4’s [standards exceeded] which is encouraging. I spoke to a service user, alone. He was positive about Insight and didn’t reveal any difficulties apart from another service user who could sometimes be challenging. In short it was a positive experience. I was encouraged that there would be an assessment period. Wendy Shepherd made the point that compatibility has to be an issue, therefore it is prudent to give someone a try out. I addition, I used the ultimate criterion of “if my daughter was going there how would I feel”? I would feel happy about it. I didn’t talk to the other staff for long as there was not enough time but informal conversation suggests they were pleasant. Therefore I would be fully confident if my offspring was there. As far as the wider issue of a user’s personal development is concerned, the unit has session plans/service plans. They individualise what would be available according to the service users needs and can provide support in college or other support e.g. for distance learning. The young man I spoke to was doing such a course. In the long term Insight intends to get registered with the Learning and Skills Council to provide a learning environment but cannot guarantee that as they are in the very early stages. Taking what is available currently, there is a satisfactory living environment with planning and review in place and the opportunity to use the resources of the wider environment appropriately.”

He maintained his reservation about Hesley. He was questioned by Louise’s solicitor:

“JW Question: How would Insight meet Louise’s educational needs? TA Answer: Going back to my report, Louise has developmental needs in the broadest sense. The principle concerns must be in relation to her ability to act appropriately with people (learning to accept and express demands). An educational context is one in which one may learn and apply these skills. Until there are sufficiently established relationships Louise will find it hard to accept going on to a course in some way; she needs a gradual transition. It would be subject to her learning to reciprocate in a social sense. JW Question: How would they teach her to reciprocate? TA Answer: By modelling and providing positive options for a young person to take. In a sense from boiling down what everyone else learns in life and making it part of what happens in the unit. There is no specific programme, you have to take it in context. An experienced person will know how to take this forward. There will be elements of Louise being given specific targets and objectives. HS Question: Will Insight be able to? TA Answer: I have confidence. Staff have various degrees of experience but they receive supervision and have developmental programs in place.”

Until there are sufficiently established relationships Louise will find it hard to accept going on to a course in some way; she needs a gradual transition. It would be subject to her learning to reciprocate in a social sense. There is no specific programme, you have to take it in context. An experienced person will know how to take this forward. There will be elements of Louise being given specific targets and objectives.

[54]Calderdale’s suggested way forward was discussed at the meeting: I refer to the minutes at pages 413 to 415 of the trial bundle. In my judgment, those proposals are not irrational or necessarily impracticable.

The law

[55]Mr Luba summarised the applicable law in his skeleton argument in terms that were not substantially disputed:(a) In that Louise is a child in need, section 17 (1) of the Act of 1989 imposes upon the local authority a general duty to promote her welfare and, so far as is consistent with that duty, to promote her upbringing by her family, by providing a range and level of services appropriate to her needs.

(b) In that Louise is disabled, the local authority, by virtue of section 17(2) and paragraph 6 of Schedule 2 to the Act of 1989, have a duty to provide services designed to minimise the effect upon her of her disabilities and to give her the opportunity to lead a life which is as normal as possible.

(c) In that, as is accepted, the conjunction of Louise’s needs and the parents inability to meet those needs for accommodation or care result in her requiring accommodation, the local authority, by virtue of section 20 of the Act of 1989, have a duty to provide it.

(d) Before providing such accommodation the local authority shall, by virtue of section 20(6) of the Act of 1989, so far as is reasonably practicable and consistent with her welfare, ascertain her wishes regarding such provision and give due consideration to them having regard to her age and understanding.

(e) By virtue of section 23(8) of the Act of 1989, the local authority have a duty, so far as is reasonably practicable, to secure that the accommodation provided for Louise, as a disabled child, is not unsuitable to her particular needs.

[56]If Louise were to accept Calderdale’s offer of a placement at Insight, it cannot and is not disputed that it would satisfy its above duties, other than (d). Insight is, on the evidence before me, the most suitable placement for Louise; Calderdale’s view to that effect is indisputably reasonable. The obstacle presently preventing Calderdale so satisfying its duties to Louise is her objection to that placement.

[57]In his oral submission, Mr Luba also relied on Regulation 3(3) of the Arrangements for Placement of Children (General) Regulations 1991:

“In the case of a child to whom section 20(11) of the [Children Act 1989] applies (child aged 16 or over agreeing to be provided with accommodation) the arrangements shall so far as reasonably practicable be agreed by the responsible authority with the child before a placement is made and if that is not practicable as soon as reasonably practicable thereafter.”

[58]Section 20 is as follows: 20. —(1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of—(a) there being no person who has parental responsibility for him;

(b) his being lost or having been abandoned; or

(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care. (2) … (3) Every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation. (4) A local authority may provide accommodation for any child within their area (even though a person who has parental responsibility for him is able to provide him with accommodation) if they consider that to do so would safeguard or promote the child's welfare. (5) A local authority may provide accommodation for any person who has reached the age of sixteen but is under twenty-one in any community home which takes children who have reached the age of sixteen if they consider that to do so would safeguard or promote his welfare. (6) Before providing accommodation under this section, a local authority shall, so far as is reasonably practicable and consistent with the child's welfare— (a) ascertain the child's wishes regarding the provision of accommodation; and (b) give due consideration (having regard to his age and understanding) to such wishes of the child as they have been able to ascertain. (7) A local authority may not provide accommodation under this section for any child if any person who— (a) has parental responsibility for him; and (b) is willing and able to— (i) provide accommodation for him; or (ii) arrange for accommodation to be provided for him, objects. (8) Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section. (9) Subsections (7) and (8) do not apply while any person— (a) in whose favour a residence order is in force with respect to the child; or (b) who has care of the child by virtue of an order made in the exercise of the High Court's inherent jurisdiction with respect to children, agrees to the child being looked after in accommodation provided by or on behalf of the local authority. (10) Where there is more than one such person as is mentioned in subsection (9), all of them must agree. (11) Subsections (7) and (8) do not apply where a child who has reached the age of sixteen agrees to being provided with accommodation under this section. (a) there being no person who has parental responsibility for him; (b) his being lost or having been abandoned; or (c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care. (a) ascertain the child's wishes regarding the provision of accommodation; and (b) give due consideration (having regard to his age and understanding) to such wishes of the child as they have been able to ascertain. (a) has parental responsibility for him; and (b) is willing and able to— (i) provide accommodation for him; or (ii) arrange for accommodation to be provided for him, (a) in whose favour a residence order is in force with respect to the child; or (b) who has care of the child by virtue of an order made in the exercise of the High Court's inherent jurisdiction with respect to children,

[59]Louise is owed a duty under subsections (1) and (3). By virtue of subsection (6)(b), Calderdale must give due consideration to Louise’s wishes, but that does not of itself impose an obligation to comply with them. On the other hand, if the local authority may satisfy its duties under section 20 by placing a child at either of two equally appropriate establishments, in the case of a child who is able to make a sensible choice, other things being equal that subsection would normally require it to place the child at the establishment that she prefers. If the local authority considers one establishment to be preferable to another, but that other is not unsuitable, and the child absolutely refuses to reside at the local authority’s preferred establishment, I do not think that the local authority is absolved from complying with its duties under section 20. In such a circumstance, it may have no choice but to place her in the child’s preferred establishment. I do not read the reference to “accommodation” in subsection (11) as meaning the particular accommodation offered or provided by the local authority. If it applies, it disapplies subsection (7), which clearly refers to accommodation in general rather than any specific accommodation. In other words, if a child who has reached the age of 16 (as Louise has) agrees to the local authority accommodating her, her parents have no legal right to prevent its doing so, and have no right to remove her from any accommodation provided by the local authority. Louise does agree to Calderdale providing her with accommodation under section 20, although she does not presently agree with its proposals, and subsection (11) therefore applies.

[60]Mr McCarthy did not have notice of Mr Luba’s reliance on Regulation 3(3), and I do not have the benefit of his considered submissions on it. I do not think that I need reach a final view as to its effect. It refers to “arrangements” rather than “placement”, and the former expression is wider than the latter: see Schedule 4. It does however include the identity of the accommodation to be provided: see paragraph 1 of that Schedule.

My conclusions

[61]It at all possible, Louise should be persuaded to go to Insight for an assessment period. If her objection to it can be overcome, the evidence is clear that it is the better establishment for her. The evidence indicates that she may be persuadable, given encouragement and an explanation that the placement is a trial rather than final. At any rate, the view of Calderdale that she may be persuadable is not irrational. Louise’s inability to make decisions in her own interests appears to be a manifestation of her disability, and Calderdale’s view that attempts should be made to overcome her present objection does not cause it to be in breach of its duty to give due consideration to her wishes. Further, in my judgment it has not been established that it is not reasonably practicable to secure her agreement to at least a trial placement, for assessment, at Insight.

[62]I do not think that the absence of on-site educational facilities at Insight or the fact that no specific arrangements for Louise’s education have been proposed affects these conclusions. Particularly in a young person of Louise’s age, education is not just a matter of literacy, numeracy and knowledge. Louise has a need for personal development, to learn to act appropriately with other persons. I refer to Mr Akerman’s views recorded at page 408 of trial bundle 2: the prospects of her achieving this are far greater at Insight than at Hesley. Louise’s best interests would be served by going to Insight, if she will.

[63]When I summarised my conclusions on 3 August 2004, I paid tribute to Mr and Mrs Twomey. I also stressed the need for urgency given both Louise’s need for a placement, the time that has elapsed since she was at Focus Arc and the demands on the family, and in particular Mr and Mrs Twomey, arising from Louise’s sister’s disabilities.

[64]My conclusion was that at the date of the hearing before me, Calderdale was not in breach of its statutory duties to Louise. The present situation cannot continue for very much longer however. If Louise is unpersuadable, that may be a fact that dictates the choice of placement that Calderdale is bound to make. It is for that reason that I adjourned this case until the first practical date for its further consideration, i.e. a date to be fixed during the first week of September.