A, Re [2015] EWHC 1709 (Fam)

[2015] EWHC 1709 (Fam)Case No ZE15C00287
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of JusticeDate Thursday, 11 th June 2015
Before
MR. JUSTICE BODEY(In Private)Re A_________Transcribed by BEVERLEY F. NUNNERY & CO.(a trading name of Opus 2 International Limited)Official Court Reporters and Audio Transcribers5 Chancery Lane, London EC4A 1BLTel: 020 7831 5627 Fax: 020 7831 7737info@beverleynunnery.com_________MISS S. BRADLEY (instructed by Legal Services) appeared on behalf of the Local Authority.MR. J. AUBURN appeared on behalf of the NHS Foundation TrustMR. TAIT appeared on behalf of A’s Children’s Guardian._________

J U D G M E N T (As approved by the Judge)

[1]This is a troubling case. It concerns a child, or, more accurately, a young woman, whom I will call A. She is aged 13 and is accommodated by a Local Authority. The Local Authority applies for a secure accommodation order in respect of her under s.25 of the Children Act 1989. The Local Authority’s case is that A is a danger to herself and others, and that she is no longer containable in any form of ordinary residential unit. She has been accommodated since the spring of 2014, when her parents felt unable to contain her challenging behaviours. They, her parents, agree the need for secure accommodation, at least for the time being.[2]The matter first came before me out of hours two days ago, having been transferred by a Circuit Judge from another Family Court, where the application had been made that morning. That was 9th June 2015. Miss Sally Bradley represented the Local Authority on that day, and has done so since. Because a Children’s Guardian is mandatory under s.25(6) of the Children Act 1989, I stood the case over on Tuesday to yesterday, Wednesday, and directed CAFCASS to appoint a Children’s Guardian urgently, and to attend at a hearing before me at 2 pm yesterday. I am grateful to CAFCASS for responding so quickly, and for appointing Jackie Roddy as A’s Children’s Guardian, and for appearing yesterday with a solicitor, Mr. Tait.[3]On Tuesday I also requested the local NHS Foundation Trust responsible for the local Child and Adolescent Mental Health service ‘CAMHS’ to cause someone familiar with A’s case to attend to assist the court, in particularly on why A was not considered suitable for a psychiatric-type disposal under the Mental Health Act 1983, and to help with any local knowledge that CAMHS might have about suitable secure units in the locality. The local NHS Foundation Trust appeared before me by counsel, Mr. Auburn, and again the court is grateful to them for attending to assist.[4]Briefly, the background is that A is an adopted child. It is thought that she may have sustained a brain injury as a baby when with her natural parents. It is also understood that members of her natural family may have had CJD (Creutzfeldt-Jakob disease). She has a diagnosis of ADHD, and of Oppositional Defiant Disorder. As I have said, in 2014, her (adoptive) parents felt that they could no longer care for her, and so she was accommodated under s.20 by the Local Authority. Her (adoptive) parents nevertheless remain concerned for her and see her as and when such is possible.[5]Since being accommodated, A has sustained a number of moves and a number of schools. Attempts for her to be placed in family foster care quickly broke down. All this must have been very difficult for her. The moves were necessary because, successively, those caring for her found they were unable to cope with her challenging behaviours. Currently she is in a residential unit where she is the only resident. There is another unit nearby where there are other children, but it is thought too dangerous for A to be placed with those children. She has two members of staff with her 24 hours per day. The staff at the unit are struggling to contain her, and have now reached a stage of saying that they cannot do so for very much longer.[6]On 3rd June 2015, A was assessed by the CAMHS team at a local hospital. The assessment was led by a specialist registrar in psychiatry, and was attended by a second specialist registrar in psychiatry. I am told by Mr. Auburn that this was a wide assessment, involving not only an interview with A herself, but also discussions with all involved in her case, including a reference to greater seniority. The firm opinion and outcome of that assessment, which is before me and I have read, is that A does not fulfil the criteria of s.2 of the Mental Health Act 1983 for admission and detention for mental health assessment.[7]Put in lay language, the expert consensus of CAMHS is that A’s problems, although recognised as being severe and extreme, are not of a mental health or psychiatric nature; but rather are of a behavioural nature. Therefore, admission to a Young Person’s Psychiatric Unit for assessment and potential subsequent treatment is not currently ‘on offer’ as a way of dealing with A’s problems. That view, of course, must be respected. Nevertheless the registrar says:
“Her behaviour does put her at great risk of harm, both from physical injury or even death (e.g. biting electrical cables and use of ligatures) and to the risk of sexual harm and exploitation in the light of her very sexualised behaviour … We are not admitting to a mental health unit but recommending that she be considered for admission to a child secure unit …”
In answer to the question on the form, “Any safeguarding issues?” the psychiatrist has put, “Considerable risk of harming herself by the behaviours she displays”.[8]So what are these alleged behaviours? They are multiple and maladaptive, and they cover a range of conduct varying between the antisocial and challenging to the downright dangerous. By way of example, over the last six weeks she has allegedly attempted to jump over the banisters; she has told staff that she had swallowed lighter fuel; she has swallowed shampoo; she has broken a window and climbed on to the roof; she has on two or three occasions smashed lights; she has asked if she could go to her room and jump out of the window; she has thrown a chair at staff and begun to hit herself on the head; she has pulled a fire detector from the ceiling, leaving wires exposed, and attempted to bite them; she has tightened a jumper cord round her neck going red. She has allegedly attempted to eat glass and threatened to kill others. Most recently, she has made threats in respect of the children in the nearby unit. She has assaulted staff repeatedly by punching, kicking and slapping, on one occasion biting so hard that she broke the staff member’s skin through two layers of clothing. She has, in addition, on several occasions removed her own faeces, thrown it, smeared it and once eaten it. She has on occasions inserted things inside herself, including a glove, plasterboard and faeces. She has had to be taken to A&E on some four or possibly five occasions; but each time has been discharged back to the residential unit for the reason discussed above and reflected in the assessment by CAMHS.[9]It can readily be seen why staff at the residential unit are now at the end of their tether, and why the Local Authority seek a secure accommodation order as being a remedy of last resort. Unhappily, A is well beyond the likely capacity of any foster care placement where she could receive a more family-like environment.[10]Notwithstanding very great efforts by the Local Authority, which the Children’s Guardian has acknowledged, no secure unit has yet been able to be found for A. Two or three such units were thought to have been available, but they have fallen through. There is one referral meeting happening today, which might produce a result.[11]S.25 of the Children Act 1989 provides (and I paraphrase) that no child may be placed into secure accommodation unless it appears “… that, if she is kept in any other description of accommodation, she is likely to injure herself or other persons”. I am entirely satisfied on everything which I have read that this threshold is met in respect of A. Conventionally, a specific placement is identified before a secure accommodation order is made. However, that is simply not possible here, and both the Local Authority and the Children’s Guardian invite me to make the order in general terms, leaving it to the Local Authority, on consultation with the Children’s Guardian, to place A at an appropriate unit as and when one is identified. Miss Bradley has mentioned her recollection of what she described as ‘an old Scottish case’ which says that one should not make an order without an identified unit in place. That is not a requirement of S.25, and in any event I would regard this case as exceptional, where there is great urgency, where everyone is at court today, and where a secure accommodation is, frankly, the only way of protecting A from herself (unless circumstances change such that a psychiatric disposal becomes ‘on offer’).[12]I am, therefore, making an interim secure accommodation order to cover the next two weeks, when the court will review the situation, reserved to myself, if at all possible.[13]I give this judgment in open court, although anonymised, because it relates to the liberty of a young person. Ordinarily, the young person herself would be informed of the application and given an opportunity to attend if she wished. That has not happened here. The Children’s Guardian does not consider that it would be in her interests, and believes that it would very probably disturb her even more than she is disturbed already. The Local Authority agrees with the Children’s Guardian and, from what I have read, so do I. A may have an opportunity to attend at the hearing in a fortnight if the Children’s Guardian, in her discretion, thinks it would be in her interests to do so and would not be overly-disruptive to the process.[14]A can be seen as falling between two stools. She is not amenable to a psychiatric disposal on the expert report available, but she is unable to be contained in ordinary residential homes. It is clearly unsatisfactory that no secure arrangements can readily be found for her, and that she remains currently at some measure of risk, howsoever hard the staff struggle to contain it, in the ordinary residential unit where she is placed. The Local Authority must, and will, therefore continue its efforts to find secure accommodation. They tell me that funding is not a problem in this case. The Local Authority will also be considering the possibility of obtaining an independent psychiatric report into her situation, which could then be shared with the local CAMHS team to see if it effected their current opinion. _________