R (on the application of O) (Claimant) v PETERBOROUGH CITY COUNCIL (Defendant) & CAMBRIDGESHIRE & PETERBOROUGH NHS FOUNDATION TRUST (Interested party) (2016)

The claimant applied for judicial review of the defendant local authority’s decision to make her the subject of a child protection plan (CPP).

 

The claimant was autistic and had started to refuse to eat or drink when she was six years old. A nasogastric tube was used to feed her. Her paediatrician, employed by the interested party, advised that she should be admitted to a specialist unit as an inpatient, but her mother disagreed. The interested party made several safeguarding referrals to the defendant which resulted in no action being taken as there were no child protection concerns. A core assessment was carried out after a further referral was made. The claimant was identified as a child in need, but it was found that her home education was excellent and that her mother provided a great deal of emotional warmth. The defendant decided that no action was required. As a result of the dispute between the medical team and the mother, the treating consultant and nurses withdrew from the case. The claimant was referred by her GP to a London hospital for review, but that hospital said it could not proceed without a local paediatric team being in place. The GP made a further referral to a paediatrician, but nothing came of that. The interested party made another referral to the defendant which led to a meeting of relevant professionals to consider putting a CPP in place. Reports were provided and key risks were identified. It was noted that the claimant was not toilet-trained and was still using a buggy. It was further noted that the mother had been trying to seek a second opinion since the medical team’s withdrawal. An education monitoring officer took the view that a CPP should not be put in place as it was too strong a measure and there was no risk of significant harm to the claimant. However, the other professionals decided that the claimant would be made the subject of a CPP and that she was subject to neglect. The first aim of the plan was to seek a second opinion. The instant claim was issued. The CPP was eventually withdrawn as agreement was reached with respect to medical treatment. A gastrostomy was performed to allow the claimant to be fed. The claimant contended that the claim did not become academic as the history of a CPP being imposed would have a continuing negative impact on her and her parents. The mother had previously worked with children and the imposition of the CPP would have to be disclosed if she returned to work.

 

The claimant submitted that the defendant had failed to ask the right question and had not properly addressed the question of neglect. She argued that its conclusion was irrational as there was no evidence on which it could have reasonably concluded that her parents had been guilty of neglect, and if the purpose of the CPP was to resolve the dispute about medical treatment, that was not a permissible purpose.

 

HELD: The court accepted that the claim had not become academic with the withdrawal of the CPP. The claimant’s submissions were accepted. Even making allowances for the wide margin of appreciation enjoyed by local authorities in child protection matters, the defendant had either failed to understand the concept of neglect or, if it had the concept properly in mind, its conclusion was irrational. There was no evidence of neglect on the parents’ part. At each previous referral the defendant had decided that no action was required and with regard to other facets of care, such as education, there had been no concerns. The only issue which had led to an impasse was the dispute between the parents and the medical team about residential treatment. In that context, far from being neglectful, the parents had done all they could reasonably have done to seek a second opinion and it had not been their fault that the London hospital had refused to conduct a review. The decision to put the CPP in place was quashed and, in the light of the parents’ concerns about the possible future impact of the making of a CPP, the court made a declaration that the decision was null, void and of no effect.

 

Application granted

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