Sir James Munby proclaimed in a highly publicised judgment, ‘we would have blood on our hands’, if the NHS could not find a low secure inpatient bed for a 16 rather than an 18 year old.
A number of suitable beds were found the next day.
No concern was voiced for the Local Authority’s treatment of 16 year old X, after her removal from her mother and siblings at 14 , nor, that her desire to be reunited with the only people she knew and loved was the reason for her beyond desperate despair.
Only last year Local Authorities attempted to statutorily exempt themselves from liability for those, like X, they are paid to protect.
X’s Guardian had stated of X’s years in care:
“The facts of this case are calamitous. Indeed, a review of the initial evidence of the local authority from April 2015 makes for sobering reading at what must today be the final hearing.
At the time these proceedings were issued, the local authority were concerned for a child with poor school attendance, ‘low-level criminality’, periods of absconding and a mother who lacked the insight and parenting capacity to assist.
Now, in June 2017, the court finds itself tasked with determining issues of welfare for a child seemingly committed to killing herself, with a raft of serious criminal convictions to her name and a toxic relationship with her mother’.
So who, one wonders, proved the better parent?
The local authority’s final care plan set out three ‘contingency’ plans, each involving a return to the community with support from an organization whose employees operated under a ‘no restraint policy’ and would be reliant on the local police.
The first two plans provided a return by X to her home town, either living with her mother, or in a “bespoke placement”.
The third plan was a similar “bespoke placement” but outside X’s home town.
But by the penultimate hearing when a further care order was made although it would expire in weeks on X’s 16th,, a care plan was still not in place.
Six weeks later, at a final High Court hearing 11 days from the expiring of X’s Youth Custody Order, and freedom for X, these plans were scrapped, because of a visit by X’s guardian, the opinions of X’s care staff and the belated notification of 85 Reportable Incidents since X’s arrival in Youth Custody, all of which apparently were ‘as a result of self-harming risks and behaviours’. The vast majority, resulting in restraint.
Sir James Munby in this High Court hearing, relied heavily an email by the guardian to the Local Authority the day after her visit saying;
’ It requires to be read in full, and considered very carefully indeed, by everyone concerned with X.
While at ZX the guardian witnessed a profoundly disturbing and distressing scene when X self-harmed by repeatedly banging her head and face against the wall. The guardian commented that:
“This … came out of nowhere. My visit to her had been pleasant … She was full of smiles and laughs. Within 15 minutes however she was beyond herself.”
We are not told why, or what had been discussed in this 15 minutes that might have made X ‘beyond herself’, but the Guardian later reports,
“… there has been no assessment of risk or contact planning ( with X’s mother). This needs to happen as a matter of urgency. At this time, the guardian does not support unsupervised contact and would not support an increase from the current fortnightly arrangement; telephone contact needs to be fully monitored.”
The guardian adds in her email,
“I have never seen or heard anything like it in my 32 years of practice.”
The email went on to summarise what the guardian had been told by the staff at ZX:
“The entire staff group’s opinion that:
‘X’s goal is not to go to [her home town] it is to kill herself’ (emphasis added)
Any care plan that allows X to visit home yet not live there is likely to underline this feeling of rejection and is therefore dangerous to X and to other people.
… The unit has 2:1 staffing levels, they have risk assessed every inch of X’s surroundings. She has still managed to eat all the silicone around the windows, still attempts to tear up doorplates to ingest either pieces of wood or screws, all the plastic sockets had to be replaced with metal, she cannot have carpet in her room (which is nothing more than a cell),
she has to be checked every 50 seconds in the shower and only this morning was found naked banging her head off the sink, the mirror had to be removed in case she smashed it and cut herself.
… Staff feel their professional opinion has to be conveyed to the court as they believe X has begun to open up to them, make some level of attachments to staff, yet resents them for stopping her carrying out her deeply held wish to die.
They wish it to be known that their collective view is that X is not acting out because she is in a secure unit and this behaviour will stop as soon as she is given her freedom, they can only foresee X making continued attempts to kill herself due to whatever is buried deep within her and which intensifies whenever she experiences the negative atmosphere of her mother’s home where her emotional needs are not met (they state contact is poor quality and is not emotionally nurturing to X) and where in fact she feels she is less important and loved by [her mother] than her siblings’.
So, on the strength of the unopposed, untested, inadmissible, non expert opinion evidence of anonymous ‘staff’ on X’s relationship with her mother and home life and that X was a serious risk to herself if released, X’s fate was sealed, she could not be sent free, and all care plans were scrapped.
Yet psychiatric assessments, had only made tentative diagnoses of Emotional Instability Disorder and ADHD, both understandable in X’s dire, 2.1, 24/7 supervised encaged existence, with an overriding diagnosis of Reactive Adjustment Disorder;
‘linked to her frustration, agitation and profound disappointment that her only wish is to return home to her mother … cannot be fulfilled and she is hopeless as to her future.’
But no depression and X’s suicidal tendencies,
‘are behavioural rather than issues of mental health’, so ‘a low secure facility which has the therapeutic facilities to manage her presentation, rather than a medium secure facility’ was recommended.
As experts, at most found ‘mild learning disabilities’, they assessed X as having capacity under the MCA so COP and a DOL could not be used to remove her freedom.
Neither could a section under the MHA ,as X’s issues were behavioural not mental.
Her Care Order expired at 16, therefore, in 11 days time, when X’s youth custody order expired, X could not be detained unless an order was made under the High Court’s inherent jurisdiction.
And, practically, X could not be detained in Youth Custody, or receive the suggested care packages, as these could not involve restraint, or medication, whilst a mental facility could.
So what of X’s undisputed ‘toxic relationship’ with her mother, who care workers’ hearsay of X’s confidential conversations observations and opinion on them conclude,
’ contact is poor quality and is not emotionally nurturing to X)and where in fact she feels she is less important and loved by [her mother] than her siblings’.
And a guardian who wanted to ‘risk assess future contact to further restrict the 2 fortnightly visits and for telephone contact needs to be fully monitored.”
X had fortnightly visits from her mum, on the unit the risks were assessed as too great to be held in the usual visiting areas.
The visits were closely supervised by two staff at all times, and extra staff are positioned on the unit should any incident arise during the visit.
X had made all allowed five visits, despite no doubt a lengthy ( 30 mile) public journey from Kendal, confidentiality excludes us knowing the name of the custody centre, but from hearings it appears in Liverpool.
And great significance, appears attached by the guardian to the fact that
‘ each of [ these visits] resulted in [her] demonstrating behaviours which have resulted in the need for her to be physically restrained later the same evening’.
Anyone, forced apart from their Mum, after not being allowed a word of private conversation or expression, knowing they would not be back for two weeks would indeed be upset and furious, this shows X’s need and attachment to her Mum and fury at the conditions of her containment.
A mother who sought out her own legal representation, which gave evidence that X was on “a path of self-destruction”.
And, that she was “deeply worried” that X would continue to self-harm, if she remains in secure accommodation, but equally is worried that X could attempt to kill herself if living in the community.
The mother as did her daughter believed her contact with X should be increased in frequency and take place under more relaxing conditions.
Not like the guardian and workers who wanted contact risk assessed and curtailed. Why?
X’s first preference, as expressed to her solicitor, when she visited her at ZX on 11 June 2017 , is to return to her home town to live with her mother; if that cannot be achieved, she would want to live nearby her mother so as to be able to see her every day.
This is showed, in her solicitor’s view, that X’s “determined focus”, as repeatedly expressed during her visit, is to return to her home town as soon as possible, and she records X as simply shutting down at any mention of her actions and as being “not interested, or perhaps not able” to discuss possibilities when it comes to future care planning.
Contrary to the guardian’s repeated worker hearsay.
Why cannot X return to her own town and see the only people she knows and lived with until she was 14 ? What else has she got and who else really cares about her ?
It is assumed X was not in court, when her liberty was removed for a suggested 18 months with enforced medication.
The Judgment, nor I assume any lawyers made reference to X’s right to liberty under Article 5, nor to a family life under s8 HRA .
The High Courts Inherent jurisdiction trumped both, and who could or would appeal ?