Re W (A Child)



Judge: Family Division (Hayden J)

Citation: [2021] EWHC 2844 (Fam)

Summary

This case, in public law proceedings concerning a disabled 12 year old boy, is nevertheless of interest to Court of Protection practitioners as it concerns the familiar situation in which the parents of a person with significant care needs find themselves in conflict with the professionals.  W required 1:1 care at all times because of his disabilities,. The care agency threatened to withdraw their services, saying that the parents had:

(i) insisted on having oversight of the training of carers at all times;

(ii) required the removal of two of the carers from their position on unreasonable grounds;

(iii) alleged, without proper foundation, serious misconduct by the paediatric nurse with oversight of W’s care package and demanded her de-registration before their allegation had been investigated;

(iv) declined to co-operate with a review of W’s care package despite having complained that he is not being adequately supported by trained health care staff; and

(v) refused to permit the emergency services to be called promptly even though W’s oxygen saturation levels had dropped below 85% on a particular date.

As is common in public law proceedings involving children, the court ordered a psychological assessment of W’s parents, focusing on their ability (or otherwise) to provide adequate parenting to him. The psychologist who prepared the report, Dr Hellin, found that neither parent had any mood disorder or other psychological problem, and, more importantly, that their emotional and strong responses to professionals were no more than to be expected given the circumstances:

  1. Dr Hellin did not consider that either parent had any sign of mood related problems, personality disorder or serious mental illness. M was assessed as a “balanced, thoughtful woman with considerable psychological resilience”. There was nothing to suggest that she has “health anxiety or abnormal illness behaviour”rather, her psychological state had deteriorated in consequence of W’s health needs and the demands placed on her, particularly as those needs had become more complex. M’s mental health had become acute when W had a crisis involving a bowel intussusception and brain haemorrhage, in December 2019. At that time Dr Hellin considered that M would have met the criteria for post-traumatic stress disorder, which she would no longer now meet. Nonetheless, this acute episode left a legacy of a “heightened level of resting anxiety”. As Dr Hellin points out in clear and unambiguous terms, this anxiety is “rational”and based in the “cumulative reality of life-threatening medical events in [W’s] life and the uncertainty of his condition and prognosis”. M’s response to the very challenging circumstances she faces are said to be “normal” and Dr Hellin would expect “a similar response in even the most psychologically robust person”.

 

 

  1. […] Dr Hellin goes on to describe how W’s needs and extensive disabilities cast the parents own lives deep into the background:

“They live with ongoing intense chronic and acute stress, day-to-day anxiety about his survival, the uncertainty regarding his future and their limited sense of control, at times, in the face of complex commissioning and care/medical delivery systems.”

In the course of the judgment, Hayden J cited the following passage from Re K and Ors (Children) [2011] EWHC 4031 (Fam). an earlier case decided by Hedley J.  Although again a case concerning children, the essential points about the role of the family in the care of a person with disabilities may be thought to apply to those children once they attain the age of 18.

“30. Cases of severely disabled children do not, as I have indicated, sit easily or conveniently within the scope of Part IV of the Children Act 1989… It seems to me that legal proceedings will often, at best, have a very limited contribution to make in cases like this. Whatever its deficits may be perceived to be, the family unit, if functional, is of central importance to the permanently disabled for it is the one fixed point in the constantly moving waters of state care provision. The welfare of such children over a lifetime is closely bound up with the ability of the family to remain a functioning and effective unit.

In W’s case, Hayden observed that similarly, “the court would not be best assisted by evaluating the issues in terms of the parent’s perceived failures or any mental health difficulties. It requires a recognition by the professionals that these are ordinary parents dealing with extraordinary circumstances. Dr Hellin considered that the entire aetiology of these challenging circumstances is better understood within ‘a different paradigm’ and should be considered from ‘a systemic or organisational perspective’.”

Hayden J summarised Dr Hellin’s conclusions at paragraph 16:

“There are certain features of the system around W which make it more, rather than less, likely that problems will arise in it. First, it is a very complicated system.

 

Second, the stakes are very high. Ultimately, this is about keeping a child alive and ensuring his best possible quality of life.

 

Third, commissioners face what many would consider to be impossible decisions about resource allocation.

 

Fourth, care work is intrinsically stressful, and the pressures on health professionals and care staff have been vastly increased by the Covid-19 pandemic.

 

These factors all affect the emotional climate of the system around W and the relationships between those components of the system.

 

The system around W has become sensitised and inflamed. Feelings have run high and perspectives have become polarised and entrenched.

 

[M] and [F], individual professional staff and their organisations have become stuck in polarised beliefs about each other.

 

It has become difficult for the parents and for professionals to respond moderately in ways that sooth rather than exacerbate the dynamic tensions between the different parts of the system.

 

I hope it will be apparent that this analysis does not apportion blame.

 

The family, commissioners and health and social care providers are all affected by the dynamic context in which they are trying to do their best.

 

Rather than looking to change the parents, I recommend a systemic intervention drawn from organisational psychology, psychodynamic psychotherapy, group analysis and systems theory.

 

The intervention would assist all agencies and the parents to understand the dynamic processes that have led to the current difficulties, to step back from mutual blame and recrimination, to establish working practices which will contain and diminish sensitivities and optimise collaboration between the different parts of the system. (my emphasis)

 

I recommend that an organisational or a systemic supervisor/consultant is employed to work with the system and facilitate systemic meetings within which the aims set out in the paragraph above would be addressed.

 

The involvement of the Court has radically shifted the dynamics of this system.

 

The involvement of their legal representatives and of the Court, a neutral authority, has diluted the emotional intensity of the polarised “them and us” dynamic which previously existed between the parents and the health/care providers.”

Comment

It will be interesting to see whether this judgment is relied on by CoP practitioners, either to seek an independent psychology report in cases where there is longstanding or entrenched conflict between families and professionals, or to seek the involvement of an ‘organisational or a systemic supervisor/consultant’ either instead of or alongside court proceedings.  Most practitioners will be able to think of at least one case where proceedings were hugely protracted without the underlying problems being properly resolved, and this judgment may provide a template for alternative ways of approaching such cases.

CategoryOther proceedings, Family (public law) Date

Keywords


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