Re S (Care Order: Implementation of Care Plan) (2002)

English Family Law

S A Care Plan
‘Tell Me There’s A Heaven’ by Paul Lovering

Re S (Care Order: Implementation of Care Plan)

In this conjoined appeal case there were two matters in need of address, and both involved a local authority and the issuing of final care orders for families in need of reunion. The first was re S (Minors) (Care Order: Implementation of Care Plan) and the second re W (Minors) (Care Order: Adequacy of Care Plan) as shown below:

Re S (Minors) (Care Order: Implementation of Care Plan) 

As the mother of three children aged fourteen, eleven and ten, to two fathers, the oldest of them was raised by the father of his younger siblings, and over a course of almost a decade became subject to both emotional, physical and sexual abuse on an almost routine basis.

Having run away from his home the victim explained his suffering and was subsequently placed into foster care, whereupon the stepfather denied all allegations with the full support of the victim’s mother, yet when challenged he displayed threatening behaviour before the local authority and was later sentenced to community service.

In light of those events the two younger children were also placed into foster care, while the parents separated in order to obtain their return to the family home despite recommendations by professional experts that the father remained an unacceptable risk to the children.

Following a hearing in the local court the father was found guilty of sexually abusing the eldest child, while both parents were held to have been physically and emotionally abusive towards all three children, with particular regard to the eldest sibling, while the local authority responded by seeking care orders for the three children.

While it was agreed that the eldest was to remain in foster care, the younger children were designated a care plan involving their return to the mother, however there was a degree of anxiety surrounding the absolute power of local authority decisions in such circumstances, and so mention was made of the potential human rights violation should the mother and children not retain a tenable relationship, along with the proposal of interim care orders so as to provide assurances to the family.

At the hearing the judge granted final care orders for all three children, and yet over time the promises of the social workers and appointed guardians dissolved into disappointment after none of the proposed programmes materialised.

Having been presented to the Court of Appeal, it was held that the local authority had abjectly failed on its promise to provide care, but was acquitted under arguments of monetary cuts and a reduction in public resources, whereupon the mother contended that the court had erred in not considering her suggestions for interim care orders and the children’s guardian sought relief under ss.6 (Acts of public authorities) and 7 (Proceedings) of the Human Rights Act 1998 (HRA), however both arguments were dismissed.

Re W (Minors) (Care Order: Adequacy of Care Plan)

In this instance the welfare of two boys aged ten and twelve years of age rested upon the intervention of the mother’s grandparents, who themselves resided in the United States of America.

Having met overseas, the parents returned to live in the United Kingdom in order to marry before starting a family, however during the course of their childhood the boys had been subjected to numerous separations and reconciliations, and also spent considerable time living apart from one another while remaining in contact with both parents.

This chaotic existence had later given rise to questions concerning the ability of the parents to meet the needs of the children, in large part due to the deteriorating mental health of the mother, who had made insubstantial allegations against the father prior to the local authority applying for an emergency protection and interim care order.

Having established a care plan it was agreed by the County Court that the two boys would be placed into foster care before the arrival of the American grandparents, who planned to live with them in the United Kingdom despite reservations by the judge that their migration would materialise, and that the proposed therapy and marital management programmes would succeed, with particular emphasis on the mother’s diagnosed imbalances.

Upon challenge by the local authority in the Court of Appeal it was held that the care plan had been prematurely executed, and so the final care order was replaced with an interim order, while referring the case back to the awarding judge, an alteration which instigated reluctance by the grandparents to assume care of the boys unless under definite conditions. This prompted the reissue of a final care order with the full support of the parents, albeit in argument that they would apply to have the order discharged if their reunion was not provided in due course.

For clarity, under s.33 of the Children Act 1989 an acting local authority is granted parental responsibility (PR) for the duration of the assigned care order and can therefore determine the rights of the parents in relation to their children, while under s.100, the courts are expressly denied interference with those powers, however, s.6 of the HRA 1998 prevents a public authority from acting in a way that proves incompatible with a Convention right, while s.7 allows those victim of such actions, to bring proceedings against them.

S.8 (Judicial remedies) further enables the court to decide how best to provide legal remedy, or issue powers appropriate to its jurisdiction, which translates that where a local authority infringes art.8 of the HRA 1998 (Right to respect for private and family life) the deciding court can lawfully grant relief to those affected. 

More interestingly, under the Review of Children’s Cases Regulations 1991 a local authority is required to consider the possible discharge of a care order on a six-monthly basis (subject to the views and consideration of the child(ren) and parents) while s.3(1) of the Children Act 1989 provides that parents retain the same rights, duties, powers and parental responsibilities as before an order was made, therefore their civil rights are affected, but not wholly compromised.

Finally, s.38 of the Children Act 1989 provides the court with powers to issue interim care orders in order to provide safety and security for vulnerable children for a determined period.

With both cases put before the House of Lords it became evident that in the first case the Court of Appeal had introduced a ‘starring’ mechanism as a means of preventing failure to implement care plans, whereby each plan was marked with progressive indicators that when not reached in the agreed period triggered automatic rights to reactivate the consultation process in order to avoid missed or overlooked public body requirements.

In the second case no such mechanism had been used, which had prompted intervention by the Secretary of State for Health, who received claims that ss.31, 33(3),38 and 100 of the Children Act 1989 were incompatible with existing Convention rights, while the local authority had appealed against the alteration of the care order and the broadening of judicial powers to award interim orders.

Examination of the Children Act 1989 and suggested incompatibility with Convention rights after the introduction of ‘starring’ drew immediate reference to the overlapping rights of courts when care orders are in effect, and while the House appreciated that the inventive use of rudimentary measures was a decision privy to Parliament, and that while there was stark evidence to support legislative reform, it was simply ultra vires for the Appeal Court to act without restraint. 

An so with regard to the overextension of the interim care orders when faced with an ill-prepared care plan, the House upheld the appeals bought by both a ministerial and public body, while taking time to remind the parties that:

“Where a care order is made the responsibility for the child’s care is with the authority rather than the court. The court retains no supervisory role, monitoring the authority’s discharge of its responsibilities. That was the intention of Parliament.”

 

A Local Authority v E (2012)

English Medical Law

A Local Authority v E
‘Woman in Foetal Position’ by Unknown Artist

The struggle for autonomy amidst the pain of abuse, is central to a case involving the wishes of a patient with a debilitating illness, and the requisite obligations of the State. By balancing the safeguarding nature of the Mental Capacity Act 2005 with Convention rights, it is left to the courts to determine which argument offers the greatest reasoning.

After experiencing years of intense sexual abuse during the formative years of her childhood, the patient in question became prisoner to her manifestations of trauma, through increased dependency on alcohol and medically prescribed opiates. The prologue is one of repeated lapses of overall function, underpinned by contrasting highs of academic achievement that defied her emotional scars; but through time, the former overshadowed the applicants deliberate plans for happiness, in the form of chronic anorexia nervosa.

Following hospitalisation on numerous occasions through dangerously low body weight, and a number of therapeutic approaches proving collectively unsuccessful, it was decided by the applicant to submit advanced decisions surrounding life sustaining procedures, where her health suffered to the point of imminent death; only to then provide paradoxical statements portraying her deep conviction to regain a life of meaning that had once been enjoyed. This cyclical existence placed prolonged stress upon the applicant’s health, and that of her parents and appointed specialists, who had all extended themselves beyond any obligation to keep what was considered an engaging, and yet tormented, woman alive.

Several years of medical intervention provided little to no lasting results, and so it was largely accepted that after a year of no real calorific ingestion, the patient had made clear her decision to refuse food, and that in light of her last advanced decision, she wished to remain in palliative care until the date of her impending death. When her BMI (body mass index) then reached a potentially fatal level, it was with the concerns of those assigned her care, that the matter went before the Court of Protection, in the aim of determining if (i) the patient lacked mental capacity at the time her last advanced decision was made, and (ii) whether it was in her best interests to cease intervention, and leave her to die with dignity, or resort to long-term invasive nasogastric treatment to restore her BMI to that where therapeutic rehabilitation could again recommence.

Art.2 of the Human Rights Act 1998 (Right to life) determines that the State is under a duty to protect the individual right to life, and yet art.3 (Prohibition of torture) serves to prevent any inhuman or degrading treatment, which in this case, the proposed medical programme would, by all accounts, place unreasonably high levels of physical and emotional stress upon the patient; in part as the result of years of previous treatments producing a ravaged immune system with weakened bones mass. However, art.5 (Right to liberty and security) and art.8 (Right to respect for private and family life) both enforced the applicant’s right to die with dignity, in a manner that suited both herself and her family.

In light of her advanced decision, the contradiction of mental capacity while suffering from an eating disorder, allowed s.3(1) of the Mental Capacity Act 2005 to question if the cessation of ingestion can validate the supposition that a person can understand and evaluate, information as part of a decision making process, when they are consciously killing themselves, despite knowing the consequences of that action. For that reason, it was then argued that any suggestion that the advanced directive was undertaken while compos mentis, failed when an irrational request serves only to end a life and not preserve it.

With full appreciation of the medical evidence and lengthy testimony of all parties (aside from the patient whose heath was too critical for an appearance), it was concluded that in spite of the discouraging background to both the applicant’s childhood experiences and the endemic frustrations of anorexia, there remained a concept and hope, that at the age of thirty-two, it was not too late to rule out any meaningful recovery, nor the chance for the applicant to resume the full life she had once, if only briefly, created.

For those reasons, the court reasoned that the applicant lacked mental capacity upon the execution of her advanced decision, that subsequently forcible restitution was now in her best interests, and that such action failed to interfere with the rights presented, while further holding that:

“[W]here a person lacks capacity, there is a duty to make the decision that is in [their] best interests.”