A Local Authority v The Mother & Ors [2024] EWHC 3595 (Fam)

Neutral Citation Number: [2024] EWHC 3595 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
IN THE MATTER OF THE CHILDREN ACT 1989
AND THE SENIOR COURTS ACT 1981
THE INHERENT JURISDICTION
AND IN THE MATTER OF THE CHILD
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20 th December 2024
Before
Mrs Justice Arbuthnot DBE
Between
A LOCAL AUTHORITYApplicantTHE MOTHER1 st RespondentTHE CHILD2 nd RespondentAN NHS TRUST (the “Trust”)3 rd RespondentTHE FATHER4 th Respondent
Claire Thorne (instructed by Lucy Maynard) for ApplicantRoma Whelan (instructed by Hanife Djemal of Duncan Lewis) for 1 st Respondent Katie Gollop KC (instructed by Lorraine Hardy of Brights Law) for the 2 nd RespondentAdam Fullwood (instructed by Hannah Taylor of Bevan Brittan LLP) for 3 rd RespondentFreya Rowe (instructed by Christine Fung of Barnes and Partners) for 4 th RespondentHearing Hearing dates: 19 th– 20 th December 2024This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.Ex tempore judgment: 20 th December 2024

Introduction

[1]The child, a boy, is 15 months old. He has siblings none of which have lived with the mother since the Spring of 2022.[2]In October 2024, the child was made subject to an interim supervision order after an application made by a local authority.[3]On 8th November 2024, the matter came back to court and was heard in the afternoon. The mother, contrary to an earlier order of the court, did not appear in person but was participating by video link. At one point during the hearing the mother said she was going to leave the hearing and go home. The court sat on waiting for her to join once again. She did not. An interim care order and a recovery order were made. The latter was executed by the police, but the mother and the child were not found at home.[4]Just before midnight on 8th November 2024 the police found the child next to his mother. He was in her sole care. He was unconscious and was not breathing. His mother had taken an overdose of paracetamol and there were ligature marks on her neck. The words that I am told that she said are “I didn’t mean it”. When tests were undertaken on the child, some of the same medication that his mother is prescribed was found in his urine. There is no other evidence currently which would explain what had happened to the child.[5]Paramedics were called and arrived shortly afterwards. They immediately got to work on the child and were assisted by medical specialists from the Helicopter service. After 33 minutes his heart started again. For at least that period of time he was not receiving oxygenated blood into his brain.[6]The child was taken first to Hospital A and then transferred in the specialist transport service to Hospital B.[7]The child is profoundly ill. He is in a coma and is in the Paediatric Intensive Care Unit at Hospital B. It is clear from two MRI scans and observations undertaken by the clinicians that he will not make a recovery, various parts of his brain are affected including his brain stem which controls his blood pressure and heart rate. He does not blink and is receiving ventilation, suctioning and other treatment which is keeping him alive. He cannot eat, drink or speak and never will. All his needs are met by equipment and/or staff.[8]It is as a result of the child’s prognosis that the NHS Trust makes this application for a declaration that it is lawful and in his best interests for him to be extubated and for mechanical ventilation to be withdrawn and in those circumstances that it is in his best interests to receive treatment in accordance with a Longer Term Care Plan and Symptom Management Plan that have been put together by those treating the child and an expert on paediatric palliative care.[9]The other parties to the application are the mother through the Official Solicitor after I had found last week that she lacked capacity to conduct litigation, the father, whose relationship to the child was only confirmed on 18th December 2024, the local authority and the guardian.[10]The mother is currently detained in a mental health hospital. She is not well and although there has been a video link during this hearing to where she is being treated she has not been able to listen to the details about the child. She has become very distressed. I am told she is not violent but sobs quietly.[11]A number of putative fathers had been put forward by the mother in the proceedings being brought by the local authority. It was on 18th December 2024 that a DNA test latterly taken by the father found that he was likely to be him. He is now represented and I am grateful to those who have so quickly taken instructions and appeared in these proceedings. I am also grateful to the Consultant in Paediatric Intensive Care Medicine, the child’s treating consultant and lead clinician who has taken the little time available to him between 18th December 2024 and noon on 19th December 2024 to meet the father and explain the situation to him.[12]I have also heard in writing and briefly orally from the maternal grandmother and two maternal aunts. In a moving one-page statement dated 18th December 2024, they support the application made by the Trust. They describe the circumstances as truly heartbreaking. They have been able to visit the child very regularly and must be feeling the strain of these tragic proceedings. Their commitment to the little boy has been a comfort to those caring for him in hospital.[13]From all I gather from their statement they have been helped to understand the child’s diagnosis and prognosis by the Consultant in Paediatric Intensive Care Medicine who has spoken to them at length at least twice. Once remotely and once in person. I am satisfied that they understand the hopelessness of the child’s situation and have not come to their views easily or in ignorance of his prognosis.[14]It is thanks I suspect in no small part to the Consultant in Paediatric Intensive Care Medicine ’s sympathetic yet detailed explanations about how seriously injured the child is that all the parties agree to the court making the declaration requested by the Trust. As a result of this agreement I will deal only briefly with the evidence presented to the court.[15]Another matter raised is whether the mother should have contact with the child. She is mentally ill. She may have been the cause of the child’s brain injury. Her counsel Roma Whelan has argued in a compelling way that she ought to have direct contact with the child. She has not been convicted of causing him harm and should be able to have a goodbye contact with her son.[16]The Trust takes a neutral view as to whether it is in the child’s best interests to have direct contact with his mother, although it has provided various conditions which would have to be in place to reduce the risk to the child of such contact. The local authority and the guardian, particularly the latter, argue strongly against it. I will come to the arguments later in this judgment.

The Legal Framework – Best interests

[17]The declaration is supported by the parties but I am conscious that the grandmother and aunts are not represented and will not have been placed in this deeply tragic situation before. The mother when she is better may also question the way the court approached the child’s situation. For those reasons I summarise the law which I apply to the decisions I must make for the child.[18]The law is well settled and not in dispute but the decisions made by the Court of Appeal are almost all in the context of a medical case where there is a dispute between the parents and a child’s doctors as to what is in the child’s best interests.[19]The child is little more than a year old. He is not a child who is even approaching the point at which he might be Gillick competent. He does not have capacity or competence to consent to or refuse medical treatment. A child’s parent (here his mother) has parental responsibility and so has the power to give consent for her child to undergo treatment. I have found the mother lacks capacity to litigate these proceedings and the Official Solicitor has stepped in with counsel and solicitors. The father does not share parental responsibility but having received the DNA test became a party to these proceedings the day before they started. Both the mother and father sadly agree to the declaration being made and the proposed care plan for the child.[20]Overriding control is vested in the Court exercising its independent and objective judgment in the child’s best interests. The case of Re A (Children) (Conjoined Twins: Surgical Separation) [2001] 2 WLR 480 per Ward LJ at 510F-G, 511A-B and 511E-F sets this out.[21]The Court of Appeal in Re A (A Child) [2016] EWCA 759; [2016] All ER (D) 183 said the following (paragraph 31), with reference to Lady Hale’s judgment in Aintree University Hospital NHS Foundation Trust v James [2013] UKSC 67; [2014] AC 591:
“Whilst its application requires sensitivity and care of the highest order, the law relating to applications to withdraw life sustaining treatment is now clear and well established. It can be summed up with economy by reference to two paragraphs from the speech of Baroness Hale in what is generally regarded as the leading case on the topic, notwithstanding that it related to an adult, against the backdrop of the Mental Capacity Act 2005.”
[22]In Aintree University Hospital NHS Foundation Trust v James [2013] UKSC 67; [2014] AC 591 Baroness Hale said at paragraph 22:
“Hence the focus is on whether it is in the patient’s best interests to give the treatment rather than whether it is in his best interests to withhold or withdraw it. If the treatment is not in his best interests, the court will not be able to give its consent on his behalf and it will follow that it will be lawful to withhold or withdraw it. Indeed, it will follow that it will not be lawful to give it. It also follows that (provided of course they have acted reasonably and without negligence) the clinical team will not be in breach of any duty toward the patient if they withhold or withdraw it.”
[23]And from paragraph 39:
“The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude towards the treatment is or would be likely to be; and they must consult others who are looking after him or are interested in his welfare, in particular for their view of what his attitude would be.”
[24]I have borne in mind the helpful distillation of the applicable principles in Manchester University NHS Foundation Trust v Fixsler and others [2021] EWHC 1426; [2021] 4 WLR 95 (§56) where it was held that:
“The court may grant a declaration declaring that treatment in accordance with the recommendation of the child's doctors can take place, on the grounds that it is in the child's best interests (see Re B (A Minor) (Wardship: Medical Treatment) (1982) 3 FLR 117). The jurisdiction of the court to make such an order arises where a child lacks the capacity to make the decision for him or herself, in the context of a disagreement between those with parental responsibility for the child and those treating the child (An NHS Trust v MB [2006] EWHC 507 (Fam)). The court has no power to require doctors to carry out a medical procedure against their own professional judgment.”
[25]In these proceedings I am not dealing with a disagreement between the family and the treating clinicians but I set out the law to assist the family later.

Evidence

[26]The lead clinician, the Consultant in Paediatric Intensive Care Medicine, has given evidence twice to this court. Once when a decision on the ceiling of care in the best interests of the child was being made on 11th December 2024 and now during this application for a declaration about his longer-term care.[27]The Consultant in Paediatric Intensive Care Medicine’s evidence given on 11th and 19th December 2024 was clear and given in plain English. The child’s situation is desperate. He has suffered a catastrophic injury to his brain. It is irreversible. On the coma score he is a 3 out of 15. All parts of his brain have been affected including his brain stem. He has not responded much even to painful stimuli. The damage to his brainstem means he suffers from fluctuations in his blood pressure, heartbeat and temperature.[28]After two MRI tests on 12th and 19th November 2024 as well as clinical observations, the prognosis is poor. He is at risk of further brain damage from a stroke. The treatment he is receiving also carries a risk of death. Were he to survive, he may be in a prolonged disorder of consciousness with no better awareness of anything around him than he was displaying at present.[29]To put it in plain English, he would never know his parents, his grandmother or aunts, he would never learn to speak, play or grow up to have a partner and then children of his own. He would never know the joy of a job or a home, let alone play sports or go to school. Although his grandmother and aunts are visiting him very regularly, he has no idea they are there and never would. It is a future without enjoyment.[30]The Consultant in Paediatric Intensive Care Medicine in his written evidence provided an update on the child’s medical position dated 16th December 2024. He also provided treatment plans were the court to make the declaration sought.[31]The Consultant in Paediatric Intensive Care Medicine had consulted the child’s wider treating team and their views were that it was not in the child’s best interests to continue to offer the endotracheal tube and mechanical ventilation.[32]In his statements he sets out the many risks faced by the child with continued treatment. He sets out a risks versus benefits analysis which was clear and compelling. The child is at risk of infection from the various tubes going into him, whether into his lungs or into an artery. He is at risk of developing pressure sores as he cannot shift his position and has to be moved very frequently. There is his fluctuating blood pressure which could lead to a stroke and sudden death at any time. In terms of the benefits to the child of continuation with the treatment, there is a poor prognosis and he is unlikely ever to be able to leave the PICU.[33]The Trust obtained second opinions. A consultant paediatric intensivist and a consultant paediatric neurologist, each from a different hospital, both agreed that the child has suffered an irreversible brain injury at the most severe end of the spectrum seen after cardiac arrest. The former examined the child and said that he had probably had a stopped heartbeat for longer than the observed 33-minute period. This was because he showed symptoms of a longer lack of oxygen, he had pronounced acidosis, fixed and dilated pupils and hypothermia despite being found in a house (admittedly in an attic). He has the sort of brain damage seen after prolonged cardiac arrest.[34]When the consultant paediatric intensivist examined the child, he was not interacting with any external environment and after multiple stimulations at the back of his throat there was one single very delayed gag reflex and a single breath after four minutes when he had been disconnected from the ventilation.[35]The consultant paediatric intensivist explained that the intensive care treatments were associated with pain and discomfort. There were no signs of that nor of pleasure or comfort.[36]The consultant paediatric neurologist who gave the other second opinion said the only response the child could give was to deep stimulation and pain in the form of an increase in his heart rate. He said it was “highly unlikely” he would recover enough to sustain life outside intensive care.[37]The clinicians all agree that there should be supportive treatment following the removal of the breathing tube. The approach to the gradual reduction in intensive care would be a step-by-step approach whilst ensuring the Longer-term Care Plan and Symptom Management Plan exhibited would be followed.

Decision – Best Interests

[38]The parties are all agreed that it is in the child’s best interests not to continue with the intensive care treatment he is receiving. The doctors wish to remove his breathing tube and follow the Longer-Term Care Plan prepared by the Consultant in Paediatric Intensive Care Medicine and his colleagues in a careful, respectful, steady, step-by-step way. The child may be able to breathe on his own and I know that whatever his condition after the tube is removed, he will be treated with the utmost dignity.[39]I have considered objectively and independently the evidence and bear in mind that the paramount consideration is what is in the child’s best interests. I must approach it with, as a starting point, what the child’s attitude to treatment would be likely to be. In my view if he had an awareness of himself he would feel the pain of the treatment and no corresponding gain. I have had to put in the balance medical, emotional and other considerations to determine the final balance. I bear in mind that I do not have to follow the assessment of the doctors but in a case where the parents have reached the same conclusion as the doctors, it would be perverse if my decision was contrary to the view of the parties.[40]The parties know that there is a strong presumption in favour of preserving life but in this case they agree it is outweighed by the burdens of the treatment the child is receiving and would continue to receive were the court not to make the declarations sought. The quality of the child’s life and his current pleasure in it is non-existent, whilst the burdens are great. I also bear in mind, as have the parties, that treatment leading to a successful outcome for the child is not likely. Continuing with his treatment will continue his suffering and increase his risk of a sudden uncontrolled death with a loss of dignity.[41]The guardian who visited the child this week in the paediatric intensive care unit said he is receiving exemplary care. I would echo that. I have not been to see him but I have listened carefully to the Consultant in Paediatric Intensive Care Medicine. He is clearly the most exceptional doctor, and if I may say, doing an extraordinarily difficult job with the most vulnerable, the very young. He is clearly caring and his evidence shows that he has the child’s best interests at the centre of his professional life. He also has gone out of his way to explain to the family the child’s condition. Having read the evidence and heard from the Consultant in Paediatric Intensive Care Medicine, the proposed Longer-Term Care Plan and Symptom Management Plan are in the child’s best interests.[42]I make the declarations sought.

Contact

[43]The mother makes an application for direct contact. She is currently detained for treatment in a mental hospital. The father and the Trust which cares for the child take a neutral view. The guardian took a strong contrary view and said it cannot be in the child’s best interests for him to have direct contact with his mother. She said quite apart from the practical considerations, it was wrong in principle for the mother to be able to visit him.[44]The father may well want contact with his son before he is taken off the ventilator and the Longer-Term Care Plan is followed. The guardian argued there should be a risk assessment of the father before he is allowed contact. The local authority relied on what they said to be the father’s previous convictions, which turned out to be false. The police were contacted by my clerk and within 30 minutes had responded saying the father had no convictions.

Discussion

[45]I observe that I have no power to impose a contact order on the hospital Trust. Even had I had the power I certainly would not impose one on a paediatric intensive care unit. It must make its own decisions subject to its own considerations. In particular it has a duty of care not just to the child but also to other patients and their families.[46]The child is currently in a ward with other profoundly ill children. Although he can be taken to a side room, and this is likely to happen if the ventilator is removed, I can understand that it may be difficult for safe contact to happen with the mother without a risk to the child and others.[47]The mother has been arrested for the attempted murder of the child. She is due back to the police station in February. Whatever the cause of the child’s cardiac arrest, it is undoubtedly the case that the mother was mentally ill at the time.[48]I suspect what drove her to do whatever she did was the fear that she was about to lose the child. The cardiac arrest and the mother’s attempt to kill herself happened on the same day as an interim care order was being applied for. She had participated remotely in the first hour or so of the hearing. I am speculating and obviously do not make findings, but this may have driven her to take the steps she did. As she gets better she will increasingly regret what she did, even though that is likely to be too late.[49]The mother has had ongoing problems with her mental health, but she is not, as I understand it, violent. Her treating psychiatrist has been consulted and he says (I am paraphrasing a number of emails that have been exchanged between the mother’s solicitors and the psychiatrist and a colleague) that he would not have concerns about her behaviour towards the child although she would likely to become distressed and possibly dysregulated. He recommended that at any visit the mother should be accompanied by specialised nurses and escorts. With these supporting her, it should be safe for her to visit the child. The issue is that when Miss Whelan for the mother checked how the security guards would be funded, the problem was that it might take two weeks for this to occur.[50]Miss Whelan and those instructed by her have known the mother for some time. They have met her since 8th November 2024 and consider that her reaction may be to sob quietly.[51]The police were consulted and the Detective Inspector said that the police were not averse to her having contact with the child. They could not supervise it and I agree that would not be appropriate for them to do so, but the officer explained “my rationale for saying such contact would be allowed and not opposed is from a place of humanity and decency – regardless of what has happened it remains [she] is [the child’s] mother and may wish to have the opportunity to see him again”.

Decision - Contact

[52]With any decision on contact, the welfare of the child is the court’s paramount consideration. I observe, though, that section 1 of the Children Act 1989 was never drafted to answer the questions arising in these proceedings.[53]Here of course we do not have the child’s wishes and feelings. The guardian makes a strong point, that the child has no awareness of his surroundings or of any visitors, let alone being able to recognise and react to family. The guardian said there is no purpose in direct contact between the mother and the child. He will not be conscious of it and essentially he may be there because of something she has done. Of course the guardian is right.[54]The Trust agrees that he had no awareness of visitors but the doctor said that some comfort is received by the staff when they see visitors who visit and clearly love this little boy. The staff must have an extraordinarily demanding job and I can understand that they would draw comfort from that.[55]The child’s needs are to be able to have a dignified end to his life, being cared for by these specialists, with no sudden disconnection from a machine which is unplanned for and happens during a dysregulated moment of the mother.[56]The only characteristic which I need to have regard for is his comatose state nearing the end of his life which is being managed so sensitively by the clinicians.[57]It is the capability of his mother that is a concern and whether she would be able to retain enough control over herself so that the child does not get injured if she becomes overwhelmed by her feelings.[58]On balance, I do not accept the mother would purposefully injure the child but I do accept that she would find any visit greatly distressing and there is a risk that this distress may become dysregulated and the child (and indeed others) might become injured if she has to be restrained. There is also a considerable risk from the mother to herself.[59]Having considered the arguments for and against any in person contact between the mother and the child, accepting as I do that he would have no awareness that his mother is there, nevertheless it is my view, just, that it would be in the child’s wider best interests that direct contact should take place subject to escorting staff and mental health nurses being in place which would have to be funded, such funding not being the responsibility of Hospital B. The specialist nurses would have to come from the mental health hospital.[60]Had the child been able to express his wishes and feelings, he may have wanted to give his mother the opportunity for her to say goodbye. From the court’s perspective, it is a matter of humanity. I would have confidence in a decision made by the Trust that it is unsafe for contact to take place. I note though that if this contact has to be prevented that it will be an additional great burden for the mother to bear. I would be concerned that an inability to see the child would lead to a worsening of her mental health and this may spill over into her relationship with her other children who do not live with her.[61]Having visited the unit concerned two years or so ago and appreciating as I do, the sounds and sights that a visitor experiences, I would invite the hospital to provide a video of the child and his condition to the mother so she can be prepared for what she may see, if it becomes practical for her to see the child. One way is for the grandmother to make a short video of the child which could be sent to the mother’s solicitors.[62]Earlier today the Trust provided to the court a list of mitigations which they would ask to be put in place, before an in-person visit could take place. They sound entirely reasonable to me and I endorse them.[63]I would add another point, the giving effect to the declaration made above must not wait for a visit from the child’s mother if one cannot be arranged before the long-stop for implementing my decision. The balance would then tip the other way and it would not be in the child’s best interests to wait.[64]In terms of the father’s contact, I have not heard anything that would make it inappropriate for him to have contact with the child. If he chooses to visit, to meet the child but also to say goodbye I cannot see why he should not. Again I leave that decision to the Trust.

Concluding Observations

[65]Finally to the wider family, may I say how sorry I am that they have been placed in this heart-rending situation? They have been very supportive of the child and have his best interests in their mind. Although he may not be conscious of their presence, their visits are important nevertheless as it supports the staff who have a really difficult role to play in caring for this profoundly ill little boy.[66]I am sure the family join me in thanking the Consultant in Paediatric Intensive Care Medicine and the other staff for all their support for the child at this exemplary unit.