Case No: NE15C00439 
FAMILY COURT at NEWCASTLE UPON TYNE

 The Quayside
Newcastle-upon-Tyne
Tyne & Wear
NE1 3LA

26th January 2016
B E F O R E:

HIS HONOUR JUDGE SIMON WOOD

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Re S

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Judgment
1.	The court is concerned with the welfare of B, a girl, and her brother, C, a boy born respectively on 25th July 2008 and 16th June 2012, in respect of whom Durham County Council has issued care proceedings. 

2.	They are the middle children of M and F both of whom are Indian citizens. They have two siblings; an older sister, A, a girl who is now 10 and a brother, D, born in October 2014, so now 15 months old. As I will explain, neither of those two children are parties to this litigation.

3.	The parents were born in India, F coming to the United Kingdom in 1991, M following in 2005.  The children were born as follows: A first in Warrington in the United Kingdom, B in India in 2008, C in London in 2012 and finally D in India in October 2014.  

4.	Durham County Council issued proceedings on 6th August 2015 and, save for the first hearing, all subsequent hearings have been conducted by me.  Today it is listed as a final hearing and Durham County Council present a care plan whereby the court is invited to make a care order with a plan of long term foster care for the two subject children, neither of the other two, I stress, being parties to the litigation and each presently being in India, A since April 2014 and D since his birth later in 2014. 

5.	The local authority care plan is supported by the children’s guardian, Anne Hutson.  It is opposed, however, by the parents.

6.	I should mention at the outset that as these children are Indian nationals it is only right and proper that the Indian authorities should have been notified of this action being taken by the local authority in respect of Indian subjects. They were duly notified via their Embassy in November 2015 with full details as to the nature of the action being taken, as well as the contact details of all relevant family members, receipt of which was apparently acknowledged, with an indication that the Embassy would contact F, but nothing has been heard since. 

7.	The case has followed a difficult course, set out in some detail in a judgment I gave at the issues resolution hearing on 22nd January, last Friday. That had been deliberately timed late for reasons I will come to.  As a consequence of that hearing that the final hearing listed today was confirmed.  Neither parent has attended. They are in India and neither has given proper, or at least adequate, instructions, other than the general instruction to oppose the local authority’s case.  For the reasons that were given on 22nd January, the court decided that it was nevertheless in the children’s interests for this hearing to proceed, exercising its case management powers under the Family Procedure Rules, not least as the only apparent basis on which the parents say that they will return to the United Kingdom, at the present time at least, is to collect their children and take them back to India.  For reasons that I will develop, there is no basis for believing that the children’s needs would be met, were that to happen. 

8.	So why does Durham County Council say that the children were, at the relevant time, the issue of proceedings, suffering significant harm and likely to suffer significant harm and that that harm, or its likelihood, was because they were not receiving the care that would reasonably be expected to be given from their parents? 

9.	The background is significant.  Each of these children suffers from profound disability and severe cognitive impairment.  In B’s case, her current diagnosis is epilepsy, encephalopathy, global developmental delay, microcephaly, cortical visual impairment. She is fed by gastrostomy. She suffers from prolonged seizures as well as sound sensitivity.  She has scoliosis of her spine and subluxation of her hip.  By reason of her disability she receives extensive support from a community paediatrician, a consultant paediatric neurologist, consultant orthopaedic surgeon, an epilepsy nurse, dietician, speech and language therapist, occupational therapist and physiotherapist and sensory support team with regard to her health, mobility and postural needs.

10.	So far as C is concerned, his current diagnosis is dystonia, perinatal hypoxic lactatemia, encephalopathy, epilepsy and global developmental delay.  He had previously had a nasogastric tube to aid feeding until May 2014 when it was replaced by a gastrostomy. He is currently in receipt of support from the community paediatrician, orthopaedic surgeon, epilepsy nurse, dietician, speech and language therapist, occupational therapist, physiotherapist and sensory support team. 

11.	It goes without saying that each of these children is totally dependent on carers to meet all of their holistic needs, to ensure that they receive the medication and the delivery of their health plans as well as being closely monitored to ensure that their health and presentation, safety and wellbeing is at all times met. Neither has any verbal communication.  B will apparently cry with distress, but it is said to be hard to find the cause at any time other than by elimination.  C responds to sounds and sensory stimulation only. 

12.	The local authority says that F in particular does not recognise the needs of his children and their increase.  He has, from time to time, as part of a pattern, accused health and educational staff of harming both of the children, as well as ignoring advice from a range of professionals. 

13.	There is, as I say, a significant history, but the onset of the precipitating event, if I can put it that way, was that on 13th March 2015, C was admitted to the University Hospital of North Durham with life threatening dystonia, that is to say a movement disorder that causes muscle spasms and contractions.  This particular episode required a high level of nursing on admission and frequent monitoring, as persistent back arching had put him at risk of airways compression. This was described by medical staff as a serious life threatening medical condition, resulting from a gradual increase in muscle tone and, on admission, his father reported that he could no longer manage this at home, the spasms having become more frequent. 

14.	The medical records record, and one of the treating paediatrician’s comments based on that record, that such severe dystonia would have developed over time and suggest that health support should have been sought at an earlier date to prevent this life threatening episode. 

15.	B was admitted to the same hospital on 19th May 2015 due to increased seizures and she required monitoring and medication review and due to her complex needs and swallowing difficulties she has been fed by a gastrostomy which enables her to receive liquid feeds throughout the day in accordance with a dietician devised regime.  The local authority say this has been extensively discussed with B’s father and, on 9th June last year, whilst she remained an in-patient and F had been alone with her in her room, carers arrived to find B vomiting over her clothes and bedding, a liquid that was orange in colour and smelt of tomato soup. A tin of tomato soup was noticed in the waste bin in the room. F, who had briefly left the room, returned and was asked if he had fed B foods either orally or via the gastrostomy site and he denied it, but it is said that later in the evening he admitted that he had given B tomato soup with mashed potato.  Medical advice suggested that this placed her at significant risk of aspiration and choking and could have been a life threatening situation for her.  It constituted, in any event, having ignored the dietary advice, giving oral feeds that had not been agreed by medical staff, and thereby placed her at risk of significant harm.  F at different times, it is said, has disagreed with the feeding and medication regime for the children and has indicated in terms that he would not follow such a regime once the children returned to his care. 

16.	At that time M was in India.  She had left the family home in April 2014, having indicated that she was going to visit family in India, she suggests, for a family wedding and for no more than three weeks.  But, as at the time when proceedings were issued 16 months later, she still had not returned to the United Kingdom.  She had made no direct contact with the children that the authority was aware of and appeared to have no knowledge about what was going on in this country.  In fact, as became apparent much later, probably in about March 2015, when she went to India, she was pregnant, gave birth to her son in October 2014, and only returned to the United Kingdom in November 2015.  The local authority maintain it was a concealed pregnancy and that the increasing concerns of medical professionals and the local authority must have precipitated her departure, despite her subsequent explanations.  

17.	The concerns that arose in Durham were not new ones.  The family had lived in London prior to coming to Durham at the very end of 2012, or the beginning of 2013, F working, it is said, in telecoms and also as a caretaker in London.  Newham Social Services, in December 2012, had received a referral from Newham University Hospital over their concerns regarding F’s complete denial and lack of insight into his son’s health needs, despite having had many discussions regarding his long term needs and prognosis and the effect that this could have on his ability to provide suitable care and support to meet the children’s needs.  Support had been provided by psychology at Great Ormond Street to enable them to understand the diagnosis, but the local authority’s report suggested that they did not engage with that and that F avoided the psychologist every time that a meeting was arranged.  It was reported that he had made a number of verbal allegations against medical staff, with regard to the care provided to C, implying that his diagnosis was in some way instigated by the hospital medical staff, asserting his belief that the doctors had inserted a chip into his brain resulting in seizures, stating that:

		“C was left as a living guinea pig for medical testing for some kinds of bacteria.”

18.	He maintained that his son had been well until that medical intervention had occurred and, despite many discussions with agencies and so on, he continued to believe in this theory, which was of such a nature that it caused those dealing with him to raise concerns about F’s mental health, as well as his understanding of his children’s condition and its permanence.

19.	An assessment completed in Newham noted that he had been assessed by a psychiatric liaison nurse who could not identify any mental health issues as such but thought that F was overwhelmed by his son’s medical issues.  Attempts by social services to meet the family to carry out an assessment were thwarted by F saying they did not require support.  There was eventually an assessment completed in December 2012.  It noted that, although F had been fully trained by hospital staff and was compliant in taking adequate care of C, there were reported concerns around M’s ability to administer safe dosages of medicine for B and the school reported that she administered epilepsy medication sporadically, not following the procedures identified by the paediatrician.  It is also fair to say that it was noted that the parents were just coping with their children’s needs, but were simultaneously very resistant to intervention and support.  They were socially isolated and, given the range of services that the children’s needs required, this was an obvious concern.  

20.	In the event, the family moved to Durham and its local authority was alerted to what had happened in Newham, so a home visit was carried out, as early as February 2013, and advice was given.  The family said they had moved to the north east for economic reasons.  Referrals were made to an occupational therapist, with regard to housing, equipment and alterations, all of which were provided by the occupational therapist, but the parents were not in agreement with the recommendations.  Advice was given regarding a wide range of issues, which F agreed to action, but did not then do so, or ignored, or questioned the need to follow through.

21.	Support was provided on an ongoing level until May 2014 and it was felt that with both parents sharing the care, there was just about an acceptable level of care with a lot of input from agencies.  However, at that time, M and A returned to India, leaving F as the sole carer for the subject children.  It was recognised he would need additional practical support.  Only reluctantly did he accept some care from a care agency twice a week.  There was also some additional support funded by the local authority at weekends and during the holidays.  

22.	By December, a professionals’ meeting identified concerns regarding F’s unusual beliefs, his rigid thinking and the impact of that upon the care of the children, as well as his willingness, or lack of it, to accept advice.  Health professionals said he was not engaging, or he ignored advice citing his strongly held beliefs in support of his stance.  A strategy meeting was held.  It proceeded to child protection level at a conference on 20th January 2015 and each child was made the subject of a child protection plan, under the category of neglect.  A recommendation was made that F move to a more suitable property, a suitably adapted bungalow near Durham, which he did in March 2015.

23.	The next event really was the precipitating event, that is to say the admission of C in March, followed by that of B in May, to which I have already referred.  

24.	In addition to the evidence of the then social worker, Claire Brown, the local authority relied on the reports of two paediatricians who have cared for the children in Durham, Dr Haves and Dr Balu.  These are frank and, in the case of Dr Haves in particular, really quite hard hitting reports, in which neither pull their punches.  Dr Haves expressed belief that both of these children would suffer significant harm if they were returned to the care of their parents they being in hospital continuously from the time of their admission up until November, as I will come to.  She was very concerned at what to her was M’s extended and unexplained absence.  She considered F to have a significant undiagnosed mental health disorder, which was deteriorating and impacting on his ability to work with professionals, he declining to undergo mental health assessment.  Dr Haves considered his belief about the causation of the children’s disability, which is thought, from a medical point of view, to be genetic in origin, to be paranoid or delusional in nature, but more worryingly, that belief acted as a barrier to the administration of proper care and she gave a long list of examples of that, some of which I have already touched upon.

25.	She felt his allegations against medical professionals were incompatible with any evidence, or indeed reasonable expectation.  Nor, in her experience, could his views be explained by a cultural variant, or an adjustment reaction to the children’s disability, she having had some significant experience of working in communities where many people from the Indian sub-continent live. She gave examples of F’s paranoid beliefs that extended to his emails being hacked, his receiving telephone guidance from professionals in London and neighbours reporting on him, and she said it was impossible to engage with him in a rational way, which in turn made the provision of medical care in the community almost impossible.  

26.	There were other specific concerns.  First, his inability or unwillingness to recognise and manage seizures of which there was a long history.  This had profound implications for ensuring the correct medication.  His inability or unwillingness to comply with medical advice, withdrawing, reducing or increasing doses of medication, particularly anti-convulsants, such that, at times, the children were inadequately protected, or so dosed up that they presented as sedated.  F also made claims of medical expertise, repeated, I see, in his closing submissions.  His claims of academic qualifications include biology, microbiology, immunology, pharmacology, none of which were ever substantiated, but used by him to engage with professionals in what they considered an inappropriate way.  He had acquired medical equipment with no qualifications to use it, such as a blood pressure machine, as well as taking steps such as dressing in an NHS uniform or a white coat, thereby implying that he had qualifications that he did not have.  He had, on occasion, administered high flow oxygen to B, without any medical intervention or advice.  He fed her orally, as I have mentioned, and administered a privately acquired nebuliser.  Dr Haves also had worries about his emotional attachment and basic care, noting on occasion a lack of reaction to distress, a lack of stimulation, at one point offering to donate the children to medical science if a genetic condition was ever established, as well as leaving the children unaccompanied for significant periods.  Finally, was her concern about his reluctance to accept support.  She concluded her report by saying this:

		“B and C have profound and complex neuro disability.  They are highly dependent on others for all aspects of their care and remain highly vulnerable to complications.  As such, the level of parenting capacity required to meet their needs is extremely high and it is expected that any parent in that situation would require the help and support of a wide range of professionals, to give expert advice and opinion.  Professionals working with families caring for such disabled children are generally highly skilled and experienced at working with families with a variety of different beliefs and levels of understanding and work hard to develop positive relationships with the families, regardless of any differences in opinion.  However, in order to work in an effective way with families, professionals need to be able to expect a level of honesty and openness and to be satisfied that parents and carers have a reasonable understanding of key health issues.  Where parental understanding or belief systems appear to be acting as a barrier to providing adequate care to highly vulnerable children, professionals must raise their concerns.  Professionals working with F have had long standing concerns about his mental health and well being and how his strongly held beliefs are impacting on the care of his children and his ability to work with professionals.  There has been real professional anxiety about the possibility of actual harm occurring, as a result of his beliefs and behaviour and about the potential future risk to the children, owing to any possible undiagnosed, untreated and unmonitored mental health condition.  There is now additional witness evidence of incidents of a very serious nature, in which the children have been placed at high risk due to F’s behaviour.  I strongly recommend that he should not be allowed any further unsupervised access to his children and that he undergoes an expert psychiatric assessment.”

27.	Dr Balu expressed himself in perhaps more restrained terms, but the concerns were the same.  The original threshold document at issue reflected those concerns against F as well as the prolonged absence of M, without any consultation with professionals.  In responding, F denied it all.  The only denial with any specificity was that he had not been told that B’s diet was liquid only.  By feeding what he described as “semi-solids”, or “puree”, he did not accept that he had endangered her life.  In his later statement, he denied all the detailed factual matters pleaded against him.

28.	When M returned in November 2015, upset at Dr Haves’s allegation of, in effect, abandonment, she explained that she was only diagnosed as pregnant when she arrived in India and was therefore unable to travel, on medical advice, until after her son was born.  Her ability to travel thereafter was thwarted by her not being able to obtain a passport for her baby boy and, therefore, she said that her inability to return to the United Kingdom was unplanned and due to circumstances beyond her control.  

29.	The case was planned on the basis that there would be an assessment of F, which would be preceded by the psychiatric assessment, identified as needed by Dr Haves and, indeed, more importantly for these purposes, by the court, on the application of part 25 of the Family Procedure Rules.  M indicated her willingness to be assessed in a conventional parenting assessment and the local authority would thereafter plan around it.  By an order which F did not oppose, Dr Turner, a consultant psychiatrist, well known to the court, was appointed to examine F.  F failed to attend two appointments that were arranged for him, saying, after the event and on reflection, Dr Turner was unsuitable because of the cost of his report (not one that he was going to have to pay for), that Dr Turner was not known to his culture, but in any event he was a former employee of the National Health Service, so he did not trust him as a consequence of his link to that organisation.

30.	In fact, he had cited a job interview for missing the first appointment and simply did not attend the second one, thus really throwing into doubt his general reliability and honesty.  He did volunteer some kind of psychological assessment that he had obtained from a doctor in India which, on no measure, complied with the requirements of part 25 and so its admission into the proceedings was refused.  

31.	M was assessed and the local authority was, perhaps to its surprise, sufficiently impressed to propose placement of the children with her, they having been continuously in hospital since their admission and ready for discharge since at least 11th September.  The proposal was to place them in the adapted home that had been the home made available to F in March 2015, with full professional support, 24 hours a day, but on condition that F was not involved, at least until he had been assessed.  M indicated, prior to coming to court, her agreement to such a plan.  Indeed, F did likewise, albeit reluctantly.

32.	However, at the hearing convened on 11th November to sanction this plan, M changed her mind and refused to move in without F.  By then, not only had F not attended on Dr Turner, but neither parent had filed a narrative statement or detailed threshold response, despite orders made on 11th September.  Instead, they sought the permission of the court to remove the children forthwith to India.  They indicated that if permission was refused they intended to go anyway, but they would return in time for this hearing.  They asked the court for necessary assessments to be carried out in India to ensure that their children’s needs could be met, with a view to asking the court so to order at this hearing in January.  They asked for further assessment work of them to be carried out and, indeed, as I understood it made appointments with the now social worker, Claire Beers, for this very purpose, before leaving court.

33.	The court refused permission to take the children abroad.  Whilst Dr Balu indicated that the children could be made fit for travel, the concerns regarding their father remained wholly unaddressed.  The parents eventually provided a long list of medical contacts in India and the local authority agreed to embark upon the exercise of trying to undertake assessment, with the default position being that the ten days that had unusually been set aside for this hearing following the first case management hearing in September, would be used to determine the facts, which all remain disputed.  In fact, the parents left anyway, without participating in the apparently agreed assessment, producing return tickets that, on their face, appeared to indicate a return on 20th January.  Hence the decision to list the issues resolution hearing, very late procedurally, on the Friday before this hearing.  

34.	None of the Indian medical contacts which the parents provided have responded.  Several addresses were wrong or incomplete or out of date and bounced back and those which have seemingly arrived have simply not been responded to.  A referral has been made via Children and Families Across Borders, the charity CFAB, to the Indian authorities, or an Indian agency at any rate, which although some 900 kilometres away from where the family are believed to be living, has indicated that, on the court giving the go ahead, they would be prepared to carry out such assessment as was directed and that would, from the date of instruction, take a period of four months.

35.	At a further hearing on 18th December, some additional information was requested.  But the local authority took the view that the parents had sabotaged the assessment really to add to the list of all their other allegations against the parents.  Since F denied all factual matters alleged and put the local authority to proof, the local authority obtained all of the children’s medical records – I am told there are over 5,000 pages – and have drawn up a list of 25 key professionals involved with the children.  They include many doctors, therapists, nurses, dieticians and social workers.  At the same time, the threshold was re-drawn to a list with 12 headings, albeit with examples by way of sub-paragraphs, reflecting the concerns already identified, as well as drawing up a detailed chronology, from the records, from the time when the family moved to Durham.

36.	Obviously, neither parent has responded.  Additional evidence has been obtained from, for example, the assistant headteacher and occupational therapist, a paediatric epilepsy nurse and a general registered nurse, to try and deal with the issues proportionately.  Dr Haves and Dr Balu were put on standby also to be called, as witnesses of fact.  

37.	In the exercise of the court’s case management powers, and really without any opposition, I concluded that it was neither proportionate nor necessary for any of these witnesses to be called.  Ms Lugg, on behalf of M, confirmed that only M really could answer the charge of abandonment: there was no witness who was going to be able to assist me other than her and F.  Mr Gray, on behalf of F, concluded that, despite a long conference in October 2015 and a draft statement that ensued from it, he did not have any instructions he could properly put to any witness.  The draft statement was apparently very extensively altered by F after that conference and, in any event, it was never signed by him.  

38.	I should say that in not attending, F said in his email to his solicitor that it was not due to any ‘neglect or laziness’ on his part.  M has given no specific explanation.  More recently, F has said that financial reasons have prevented them attending, despite having seemingly produced evidence of a return ticket that was already in their possession, before they left.  I note that no application has been made for this hearing to be adjourned.  

39.	Accordingly, I determined that this case should proceed as a final hearing.  It should proceed on the basis of submissions only, there being a pressing need to secure the future of the children.  There is no confidence that the parents will ever come back.  There is no reasonable belief that any sufficient assessment, commensurate with the children’s needs, will ever be carried out of them.  If the court is wrong and has misjudged the parents, they can, of course, apply to set aside any order, on advancing a credible explanation for their behaviour and an evidential basis for believing that the parents can, in the future at any rate, meet the children’s needs.  

40.	For the avoidance of doubt, I have no reason at the present time to question whether appropriate services exist in India.  That is not the issue before the court.  It is the capacity and ability of these parents to access that help and play their part in promoting welfare, quite apart from the practical matters such as the access to professionals, the cost and so on and so forth.

41.	Care proceedings involve two principal questions.  First, are the threshold criteria for making a care order under section 31 of the Children Act 1989 satisfied?  Secondly, if so, what order should the court make?  The relevant part of section 31, sub-section 2 provides:

		“A court may only make a care order or supervision order if it is satisfied:
	
			(a)  that the child concerned is suffering, or is likely to suffer significant harm.

			(b)  that the harm or likelihood of harm is attributable to 

	(i).  the care given to the child or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give him.”

42.	  In this case, it is disputed that the threshold criteria under section 31 are satisfied, because none of the facts that the local authority allege in support of such a finding are accepted.  Accordingly, the court has to embark upon a fact finding exercise.  So far as the law is concerned, regarding such an exercise, it is to be found in the series of authorities of which I need only mention Re H and R (Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80 and Re B (Children) UKHL 35 more recently in the House of Lords.  The court is entitled to and must have regard to all the evidence before it when coming to conclusions on matters of fact – Re U (Serious Injury: Standard of Proof).  The standard of proof was classically defined by Lord Nichols in Re H and R as:

		“The balance of probability standard means that a court is satisfied an event occurred if the court considers that on the evidence the occurrence of the event was more likely than not.”

43.	That passage was approved by the House of Lords in Re B.  It is not necessary to set out Lord Hoffmann’s alternative way of putting it, by reference to a binary system.  It simply means that the court is satisfied if the occurrence of the event was more likely than not on the evidence.  

44.	So turning to what the parties invited me to consider.  Mr Brown, on behalf of the local authority, pointed to the substantial volume of primary evidence and the fact that the evidence of Drs Haves and Balu are the starting point.  He took me to the evidence of Sue Lewis, the epilepsy nurse who has provided a detailed chronology as well as a witness statement, which supports fundamentally F’s unwillingness or inability to identify seizure activity and the problem that that has created for treating doctors, as to how to approach treatment, the level of medication and how to avoid serious seizures, such as that which occurred in May 2015 involving B.  

45.	The nurse also set out the concerns around prescriptions, wrong doses, medication that is out of date, medication whose labels appeared to have been altered by F, all of which just adds strength to the view that this father was either not administering medication at times, administering sub-optimal doses at other times, and over administering on still further occasions, quite apart from references that are littered through the records to trying to persuade doctors not to administer medication.  The local authority says that in order to care for children such as these two, there has to be a degree of partnership, working, consistency and ability to rely on parents communicating information accurately and complying with treatment plans.  In this case, this father has serially proved himself unable so to do.  

46.	So far as M is concerned, in many ways the situation is even more sad because, whilst she has demonstrated an ability to care, the local authority says appears to have made a choice, a conscious choice, not to engage.  It does not accept the reason that she gave for not returning to the UK shortly after her visit to India in May 2014 and invites the court to conclude that the only possible motive was to ensure that her child was born out of the jurisdiction, having made a conscious decision to leave for that purpose, well knowing that she was pregnant.  As a consequence, her relationship with her children has been significantly affected.  There are some very distressing notes as to what happened at the final contact she had before she left for India in November and the local authority invite me to the view that there has been an abdication of responsibility, as well as an inability to act independently of F or at least provide some balance for his more extreme views.  

47.	The conduct of both parents in this litigation, especially given the repeated warnings that have been given by the court of the effect of failure to participate, has to translate into an inability to prioritise these children.  Sadly, since they left, there has been no contact really, asking about the children’s welfare.  The children appear to be settled and, within their limitations, thriving and making an attachment to their carer now in their placement.  It is not suggested that either parent does not love their children.  F clearly loves them very much indeed and there are signs of some kind of bond.  But what is completely unfathomable is what it is that drives his views and prevents him from engaging in a way that would better meet their needs.  

48.	So far as Ms Lugg is concerned, her submissions were obviously limited by her client’s non-attendance.  She invites me to put some of M’s actions into a cultural context.  This is an Indian marriage.  The decision to go back to India with one of the children and stay away for a long time is perhaps not as unusual in that culture, where families are split across the world, as it might be in western society.  Also, within that context, is the likelihood that her husband would have played a far greater role in decision making and influenced those decisions that she made.  She notes that the real problems appear on the records to start after C was born, suggesting that it was the challenge of caring for two disabled children that perhaps raised the level of concern.  She points to the positive observations that were made more recently of the way in which F was able to settle and comfort the children and suggests that that may well have influenced her presumed decision that it was safe to leave the children in his care whilst she went to India.  Again, I think harking back to the cultural issue, she suggests that it may be the case that M found it very difficult to operate in an environment where her husband had such mistrust of the National Health Service.  She wishes her children to be reunited with her two healthy children.  She has obviously developed massive distrust of this country, which is why, almost certainly, they are in India, hence her case that they can only reunite there.

49.	Mr Gray was in the position of having had at least some contact with his client, hence the explanation, such as it is, for not being here.  I am indebted to him for going to some length to put together submissions, such as he felt able to make, which are really more by way of observations on the evidence, regarding the standard and burden of proof, although he accepts that many of the issues that he refers to really amount to no more than assertions or beliefs which are not in fact supported by any other evidence.  So, examples of those would be in his paragraph 10, F’s assertion that he carefully recorded spasms; in paragraph 12, that he was told by a nurse that a microchip had been planted in C’s head; in paragraph 15, that the school misinterpreted B’s symptoms; in paragraph 17, that he reasonably believed that Seravit made C constipated and in paragraph 23, that he is well educated, with a significant scientific education, including a Master’s degree in zoology.  All of these are assertions.  They are not supported by any evidence that I am aware of.  

50.	Of perhaps greater substance, going back to paragraph 10, is the contention that, in relation to spasms, there is no direct evidence from the clinician who recorded F’s comments about the history of the development of spasms, that there is, so far as I can see, no direct evidence.  It is taken from the records and so accordingly it has to be treated with some caution.  It is hearsay.

51.	In paragraph 11, it is asserted that F had insisted on a reduction in Lamotrigine, an anti-convulsant, and whilst this is typical of many entries referred to particularly by the epilepsy nurse, he contends that is not supported by direct evidence either.

52.	So far as paragraph 13 is concerned, he alleges that the local authority does not assert what harm might be attributable to a long list of aspects of F’s care, saying that if true they would render him more difficult to work with.  But this is just really part and parcel of being a medical professional.  It seems to me that the evidence quoted from Dr Haves very clearly answers that question.  

53.	By contrast, paragraph 22, the denial of the feeding of tomato soup is directly contradicted, it seems to the court, by the finding of the soup tin and F’s admission recorded at that time.  

54.	So those were the submissions and I need, therefore, to turn to the schedule of findings that the court feels able to make.  

		“i) Both children have profound disabilities and severe cognitive impairment which gives rise to significant medical and educational and care needs.  Their care requires consistent compliance with specialist medical advice and care and health plans devised to ensure that their needs are met.  Failure to comply with such advice could place the children’s health at severe risk of significant and potentially fatal compromise.”

55.	There is really no answer to that and no one seeks to suggest otherwise.  The findings that follow are specific to F.  

		“ii).  On 13th March 2015, C was admitted to hospital with severe and life threatening dystonia.  The severe episode leading to admission placed C at risk of airways compression which was life threatening.  F was aware that the spasms had been increasing in severity over the preceding weeks.”

56.	It goes on to suggest that he failed to seek prompt medical advice at an early stage and placed C at a risk of significant harm.  Certainly, if that is true, it would have placed C at risk of significant harm, as is clear from the evidence of Dr Balu.  The question that arises in the court’s mind is this.  Is there a sufficient basis for a finding that he failed to seek prompt medical advice?  That was plainly the opinion of the consultant paediatrician who reviewed the matter, but there is no evidence from the paediatrician who actually addressed the matter, on the day, Dr Nyam, and it seems to the court that in accordance with the clear guidance that has been given by the President, by reference to the need to act on direct evidence, that that is absent.  So, beyond a finding that this was a life threatening episode, I do not think it is possible to go.  

		“iii)  On 19th May, B was admitted to hospital as a result of severe seizures.  F had been insistent on a reduction of the Lamotrigine medication on 16th May 2015.  B’s admission three days later was more likely than not caused by the reduction in this medication.”

57.	Again, there is no actual evidence from the doctor concerned, who reduced the Lamotrigine dose.  The records show that was Dr Workman.  Dr Balu has indicated what must be his opinion, that F had influenced Dr Workman to reduce the dose before discharge.  That may or may not be right but it would appear that the change of treatment was medically sanctioned and, however inappropriate it may have been of F to seek to influence Dr Workman, or inappropriate of Dr Workman to succumb to the blandishments of F, it does not seem, without that being properly explored by the evidence, that it would be right to make such a finding on the basis of the notes alone, however much Dr Balu may believe it.  

		“iv) F holds strong and dogmatic views on the treatment of his children.  Some of these views are paranoid and delusional.  His insistence on the validity of these views impinges on the ability of the treating team to treat the children effectively.  F is unable to exercise consistently rational judgments in relation to what care and treatments are in the children’s best interests, thus placing them at the risk of significant harm.  The following are examples.

(i).    C had a microchip deliberately implanted in his head, which is the cause of his fits.

(ii).   B has been deliberately inoculated with harmful substances.

(iii).  B’s fits at school are caused by allergens and bacteria.

(iv).  The dose of Keppra may be poisoning B.

(v).   An obsessive belief that Lamotrigine is the cause of B’s fits.

(vi). Both children have been implanted with bacterial pathogens and silver fragments in their brain.

(vii). A refusal to submit to psychiatric assessment by professionals from the National Health Service who were ‘the opponent’ and were ‘a criminal organisation’, who fabricate information.  

(viii). M has gone to India to have children since it is safer.  The NHS have made the children how they are.

(ix).  The other paranoid beliefs, some of which I have mentioned, including the view that his emails are being hacked.”

58.	As I say, there is no answer to those matters as such.  Insofar as they are likely to cause harm to the children, it seems that the evidence of Dr Haves, already quoted, more than supports that view. 

		“v)  F has received extensive education/training in relation to children’s epilepsy but remains either unwilling or unable to provide accurate information about when and how often the children are suffering from seizures.  A list of examples from the chronology is given.  These entries show significant discrepancies between fits witnessed by professionals and F; failure to report the number of seizures accurately leads to problems with the children’s care, especially with regard to anti-convulsant medication.  This places the children at risk of increased and prolonged seizure which increases the risk of sudden death from epilepsy, a well known side effect of children with such complex needs.”

59.	Mr Gray submits that a number of these reports relate to occasions when he was not present.  That may or may not be the case.  The children were under his care and it is quite clear from the evidence of Dr Haves and Dr Balu that this has been a recurrent problem throughout the care of B, whilst she has been in Durham.

		“vi)  F’s inability to recognise seizures and administer medication or seek prompt treatment places the children at risk of significant harm.”

60.	Examples are given, where F objected to the school sending B to hospital because of prolonged medical seizures.  I find that proved.  F simply contends that the school misinterpreted her symptoms.  There is no evidence to suggest that that is the case.  

		“vii)  F is either unwilling or unable to follow clear medical advice about the administration of medicines and seeks to influence medical decisions on the administration of appropriate medication, either by constant challenge, threat or manipulation.  F does not provide clear and accurate information about which medication has been administered and when.  For example:

(i).    Failure to administer Keppra medicine properly.

(ii).   Discontinuation of Seravit without medical advice.

(iii).  Wanting to give the children extra fluid when to do so could be positively dangerous.

(iv).  The obsessive belief that Lamotrigine is the cause of the fits and the persistent cause of conduct designed to stop the drug being administered.

(v).    Not administering sodium valproate effectively.

(vi).   Seeking to change the timing of the administration of medications.

(vii).  Feeding excessive quantities of potato and tomato soup without seeking medical advice, placing B at significant risk of aspiration.

(viii). F claims to have given B natural feed for years, ’12 meals per week’.  This would be directly contrary to safe dietary advice.

(ix).   F prevented the administration of medication.

(x).    F threatened to sue the dietician.”

61.	The responses that have been produced in respect of each are really no more than observations about his beliefs, with the exception of the denial in relation to the tomato soup, and I am satisfied that those have been proved.  

		“viii)  F made unsubstantiated claims of expertise in science, microbiology, biology, immunology and pharmacology.  He seeks to take on a medical role in relation to the children, over and above that which it is reasonable for a parent to claim in such circumstances.  The following are specific examples:

(i).    F required various medical equipment – a blood monitoring machine – which he had no expertise to utilise.

(ii).   F dresses in a white coat and has been seen examining the children with a stethoscope in hospital.

(iii).   F brought intravenous bags to administer fluids without seeking advice.

(iv).   The use of an Abigail pump incompatible with the current feeding regime.

(v).    Administering high flow oxygen without medical advice.

(vi).   Administering privately acquired nebuliser.

(vii).  Administering a significant quantity of potato and tomato soup, either orally, or via a nasogastric tube, without seeking prior advice.

(viii). F’s expressed intention to return to a natural feeding regime, should the children return to his care, which is contrary to professional advice, which will place the children at risk of harm.”

62.	There is no answer to any of these other than to rely on the unsubstantiated assertion that F is indeed a well educated man who, therefore, can claim at least some competence in undertaking any of those tasks.  

		“ix)  An unwillingness to accept financial support and professional advice in relation to housing and equipment.  The result has been:

(i).    The children residing in a property which was regularly described as cold. 

(ii).   Failing to ensure that the children had appropriately equipped bathing facilities and inadequate equipment.

(iii).  Failing properly to secure B in her wheelchair in taxi transport to school.

(iv).  Failing to ensure that the property in which the children live was properly adapted to their needs.”

63.	A reference to his reluctance to move into the adapted property.  No answer as such is provided in respect of any of these and I find them proved.

64.	I turn, therefore, to the findings specific to M and I do note Ms Lugg’s submissions, but:

		“x)  Leaving the United Kingdom without prior consultation with the team treating the children, leaving F to deal with the children alone.  M knew, or ought to have known that, due to F’s behaviour and beliefs, leaving him in sole charge was likely to place the children at risk.”

65.	M, I am quite satisfied, deliberately left the United Kingdom to have a baby.  She was at least four months pregnant by the time she went to India, a mature woman, an intelligent woman and the mother of three previous children.  Insofar as she asserts the contrary, I find it inconceivable that she did not know that she was pregnant and that this was a deliberate act on her part, in order to leave this jurisdiction.  More than one account has been given of her plans.  It has variously been said she went for three weeks to a wedding, that she went for a few months.  But what is for certain is that the baby that was born in October only became known to anybody with whom the family was dealing in this country, in March of the following year and the hospital in Durham was completely unaware of what had happened to M, reasonably assuming, rightly in my judgment, that she had in effect abandoned the children.  

66.	Now, whilst she may have held a very different view of F to that held by the local authority and medical professionals, she knew perfectly well of the concerns that had existed round F, from at least the time when the London Borough of Newham reported in December 2012, as well as the involvement of Durham from February/March 2013 up until the time of her departure.  So it seems to me that whatever good qualities F had, and I have already referred to those recently seen in contact, she did in the court’s judgment know, or certainly ought to have known, if I am wrong about actual knowledge, that his behaviour and beliefs were such that leaving the children in his sole care was likely to place them at risk.  So I find that made out.

		“xi)  M spending 15 months in India without sufficient reason and thus having no contact with her children M and vice versa.”

67.	It seems to me that whatever cultural considerations apply, that is the case.  It is self-evident in the difficult signs seen between the children and M, latterly in relation to contact.  They have not seen her for a very significant period of time.  I do not doubt that the dilemma that she faced was a considerable one, and to what extent it was influenced by her husband and other cultural matters, I cannot say, but it was a conscious decision to leave this country and leave the children for that length of time, only coming back when really the proceedings were at an absolutely critical point.  

		“xii)  Despite knowing F’s extreme views in relation to the children’s health and treatment, she has failed to exhibit any consistent judgment, independent of F and thus cannot be relied upon to protect the children from F’s pursuit of unsuitable medical treatment, drug administration or diet.  The local authority relies upon M’s behaviour in November/December 2015 in the context of the parenting assessment.”

68.	Again, I accept that there is a cultural context here.  But it does not alter the fact that she has not been able to demonstrate, independently, that she is a protective factor that can ensure that the children are protected from F.

69.	Having made those findings, the hearing now has to turn to the second question I identified when I first referred to the law, as to what order should the court make.  In answering that question, I apply well established legal principles.  I bear in mind the rights of the parents and the children, under Article 8 of the European Convention to respect for family and private life.  Under s.1 of the Children Act, the welfare of these children is my paramount consideration; under s.1(2), any delay in making decisions concerning their future is likely to prejudice their welfare; and then s.1(3) provides the checklist of factors to be taken into account in determining where their welfare lies and what order should be made.

70.	In this case, the particularly elements must be these particular children’s needs, their special characteristics, the capacity of the parents to meet those needs and the risk of harm that they may be exposed to.  The Court of Appeal has had a great deal in the last two years to say about the approach that courts should take when making these far reaching orders.  I have reminded myself of the judgment of the Supreme Court in Re B (A Child)[2013] UKSC33 and the European jurisprudence which, although primarily addressing the question of adoption, also has an impact on the order that the court is here being asked to make.  I bear in mind what the President said in Re B-S (Children)[2013] EWCA Civ 1146, in particular the need for proper evidence, both from the local authority and the guardian, addressing all the options realistically possible, containing analysis of arguments for and against each, as well as the need for an adequately reasoned judgment.  I remind myself of the observations, approved by the President, of McFarlane LJ of the need to approach this in a holistic, global, evaluative manner, rather than a linear approach.  

71.	The court has therefore been presented with two options: a return to the parents or other family in India, or the making of a care order with a plan of long term foster care.  The return to India was far from fanciful as an outcome.  It is perfectly possible that, despite the findings the court has now made, that these children could go to India, could there receive suitable care and be cared for either by extended family or some institution, nevertheless maintaining the link with the birth family.  The local authority says that the findings in fact do not permit a return to the parents and unless and until there is acceptance of those findings and an understanding as to how they can work with professionals in the future, that is simply not a possible outcome.  Although the parents say they can access a lot of support, both from family and from professionals, there is no indication that they do not seek to care for the children themselves.  Indeed, they seem to be saying that they intend to care for them.  Whatever it is, in any event, it is all wholly unassessed and that is not because the local authority has not tried to assess it, but because of the parents’ conduct throughout this litigation. 

72.	The local authority is supported by the guardian in its entirety over the inability of a plan to place the children with the parents.  Counsel for the parents frankly accept that they cannot presently advance the parents as carers, given their responses to the litigation.  

73.	The only other contention is long term foster care.  There is, literally, no other alternative.  The local authority has identified a permanent foster parent who, with the support of 24 hour professional care, can care for the children at their present home, which was for a time at any rate the home of the family, and which is adapted and fully equipped to meet the children’s needs.  Their needs will be met in accordance with the care plan, if approved, that is to say medical needs, a multi-agency care team, schooling, personal education plan, as well as universal services. 

74.	The children’s guardian raised an issue as to whether Children and Families Across Borders should nevertheless embark upon assessment in India, as the present social worker appeared to be suggesting in her final statement, but withdrew after the discussion we had about it.  Because, unless and until there is a plan, or at least a proposal of a plan, that could meet the children’s needs, it would, I am satisfied, be an academic exercise, despite, as I say the suggestion that it should be proceeded upon, in any event.

75.	From the court’s point of view, nothing would give greater pleasure than to be able to reunite this family, scattered across two continents.  However, the findings that the court has made, are serious and, absent them being addressed by the parents, or them preparing a care regime where safety would be ensured by others who have made themselves available and been assessed, it seems to the court that it would be completely unrealistic and disproportionate to embark upon an assessment in what would be a vacuum.  If the parents seek to oppose the order actively, they can of course apply to discharge any care order made, explain their responses to the findings and offer properly supported proposals, which are capable of investigation and assessment.  It seems to the court that, at the present time, they are in denial and they have not, despite on the face of it putting forward long lists of names, advanced proposals which are capable of being exposed to such a process.  

76.	By reference to the welfare checklist, the wishes and feelings of these children would be very difficult to ascertain.  I accept they have a relationship with their father, in particular, which is of value to them.  Set against that, they are well and building good relationships and thriving within their limitations.  Their needs and characteristics are central to this case: they are complete, profound and life long, as well as life limiting.  Any change in circumstances for them would be very hard to manage but, if all other factors were in place, no doubt could be managed.  The risk of harm is, in the court’s judgment, profound.  The findings go directly to the welfare question and there is simply no understanding as to why F, in particular, but M to an extent, have behaved as they have.  It turns directly on their capability, which is impossible to assess, because neither has engaged meaningfully in the final analysis, so it is really very difficult to measure.

77.	Looking at the range of powers available to the court, they are in truth extremely limited.  

78.	This is a desperately sad case, where, whatever their motives, the two children with whom I am concerned, have been effectively abandoned.  I am satisfied that on an application of the welfare checklist and by reference to the Article 8 rights of parents and children, the only order that presently meets their needs, is a care order.  So I approve the care plan for long term foster care.  I note that the local authority will seek to facilitate regular contact, should the parents come.  Should they choose not to, they will endeavour to facilitate Skype contact.  Whilst it is of course for the local authority to promote contact for children who are in their care, it is also incumbent upon the parents to make themselves available and demonstrate a commitment so that any contact that takes place can be meaningful.  

79.	I wish both children and their carers well.  I very much hope that the parents, faced with the enormity of what they have done, can and will reflect and, in time, at any rate, engage in a way that might yet give these children a chance of life within their family.

End of judgment 

We hereby certify that this judgment has been certified by His Honour Judge Simon Wood.

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