Misrepresenting the views of an expert

X County Council v M and Others 2014
http://www.bailii.org/ew/cases/EWHC/Fam/2014/2262.html

This is a High Court case, involving the application by a Local Authority for a Care Order, and more crucially an Interim Care Order sanctioning continued separation of a newborn baby from her mother.

The child had been removed under an Emergency Protection Order, and prior to birth there had been one of those unusual applications under the Inherent Jurisdiction for permission not to tell the mother that this would be the plan at birth. Those applications had been made on 20th May, and the child was born on 1st June and removed under an Emergency Protection Order.

That application arises from the President’s decision, when he was Munby J in Re D (Unborn Baby) [2009] 2 FLR 313. http://www.bailii.org/ew/cases/EWHC/Fam/2009/446.html .

[That’s not a decision that I like – I think there were extremely peculiar circumstances of that case, but I hoped at the time that we would never see its like again, and I don’t enjoy seeing it being made use of. Frankly, I think the family courts would be better to stick to the traditional view of events that until there’s a subject of the application to litigate about, the Court should stay out of it. No child, no Children Act]

Anyway, that is just to provide the background colour that this was a newborn baby, with features so unusual that one of the most unusual applications one can make in family courts was applied for, together with a Reporting Restriction Order. And the proceedings were being done in the High Court.

None of that is straightforward stuff, so it is a bit surprising that the case ended up being allocated to a very junior and inexperienced lawyer at a time when there were no experienced lawyers around to supervise or guide.

[Of course, I have the luxury of working for a decent sized authority, where there are a lot of childcare lawyers – if this is a very small authority one can see that holidays or illness might have taken the available stock of lawyers out of the equation]

Anyway, Keehan J was not happy with the application and evidence as it appeared before him on the first hearing, and asked for it to come back.
4. The local authority’s application for a care order and for an interim care order was allocated to be heard by me on 3 June 2014. I adjourned the hearing to 6 June, in particular for the following three reasons:
i) I was not satisfied with the evidence relied on by the local authority in support of its application.

ii) Further, the local authority had not notified the mother nor the putative father of the applications. Accordingly, neither were present before the court nor represented.

iii) Before I went into court on 3 June my clerk received an email from one of the mother’s treating consultant psychiatrists Dr Z, setting out that his professional opinion and views had been mis-represented by the local authority in the application for a care order and in the social worker’s statement filed in support of the same.

5. I was dismayed by the actions of the local authority’s legal department subsequent to the hearing on 3 June. The parents were not formally notified of the hearing listed on 6 June until the very late evening of 5 June. Further, Dr Z was not notified of the direction that he prepare an addendum report on the current state of M’s mental health until the late afternoon of 4 June. The Official Solicitor was not given notice of the hearing until the late afternoon of 5 June.

6. At the hearing on 6 June the local authority and the children’s guardian were present. The putative father, F, attended in person. The mother was not present nor represented. Ms Clift of the Official Solicitor’s Office however was present in court, because the mother had been assessed as lacking capacity to litigate, although the Official Solicitor had not yet been formally appointed to act as her litigation friend.
He then asked for the Chief Executive to explain what had gone wrong.
In light of the failings identified in paragraph 4 above, I required the Chief Executive of X County Council to prepare a letter explaining these events. She did so. It appears a very junior and inexperienced member of the legal department was entrusted with preparing the case for the hearing on 6 June. She was unsupervised by a more senior colleague because of holiday commitments. I was assured such events would not occur again and that provision would be made for the supervision of junior members of staff when more senior members were away on vacation.
These are not trivial complaints – not serving the parents with the application is a big deal, particularly where the mother lacks capacity. It is unfair to them, and it leads to them not having the opportunity to put their case and to have the time to prepare their case properly.

But far worse than that is the suggestion that the LA in their application and social work evidence had misrepresented what Dr Z had to say about mother’s situation and condition. Of course everyone makes mistakes, and if you are new, it is easy to make a mistake, but these are things that would trouble most people.  It may have been an honest mistake, but it was an important mistake.

I am a little surprised that the Council is not named here, in accordance with the President’s guidance on transparency, but perhaps there are reasons for that relating to the Reporting Restriction Order or risk of jigsaw identification.
That wasn’t the only issue

When the application first came before me on 3 June, I was dismayed that the local authority had not obtained an up to date report from Dr Z. In my view when considering the local authority’s care plan to continue the separation of mother and child, it was vital to have a report from the mother’s treating consultant psychiatrist.

Further I was extremely concerned to learn that following the baby’s removal to foster care on 2 June, there had been no contact between mother and child. The local authority told me it proposed to undertake a risk assessment of whether contact could take place and in what circumstances. It was suggested the local authority would need two weeks to undertake the assessment. I made it plain that such a delay was wholly unacceptable.
It is hard, when looking at these mistakes, when dealing with a mother who was so vulnerable and when the Courts were being asked to make very important and draconian decisions, and feel anything but dismay and a sense that the parents have been badly treated.

I’m not a local authority basher – but this falls far short of what one would want to see, and a Judge would have been entitled to be less measured than this one has been.