serious case review versus judicial review – a (cough) review

Who ‘owns’ a Serious Case Review, and what rights or  powers do the Courts have over its disclosure?

X (A child) 2014

http://www.bailii.org/ew/cases/EWHC/Admin/2014/2522.html

I do complain about the President quite a bit, but the one thing you could never accuse him of is being work-shy. This is yet another very tricky judgment that he has taken on – whilst still having two insanely difficult judgments still to produce –  Q v Q (how to fund litigants whose article 6 rights would be breached by them being unrepresented) and the fallout judgment from Cheshire West (how are the Court of Protection going to deal with the HUGE volume of additional cases that arise from the Supreme Court’s decision on deprivation of liberty).

This one relates to a child, X, whose mother stabbed him when he was about ten years old. He is now thirteen. Those care proceedings ended with the making of a Care order, hotly contested by the father, who has been in one form of litigation or another about this perceived injustice over the last three years.

Outside of the Court case itself, the Local Safeguarding Children Board (LSCB) – which is a group of senior representatives from all the relevant agencies in each local authority area (police, schools, health, social services etc), held a Serious Case Review.  These Serious Case Reviews are intended to be a scrutiny of what happened in the case and specifically whether agencies made mistakes, could have predicted what would happen, could learn lessons for the future, might need to change some policies and perhaps even whether someone professional is badly at fault and to blame.

The general rule and principle these days are that these Serious Case Reviews are to be published, although with names of children and parents anonymised. This in part, emerged from the public disgust at Baby P and the desire that these exercises were available for all to see. There’s a debate for another day about whether that transparency is a good thing, or whether it inhibits the ability of each agency to properly lay out their shortcomings.

The father contributed to this exercise and saw the report, but didn’t have a copy of it, and it was not made public.

The LSCB rationale for that was this :-

• The LSCB received the overview report and executive summary on 15 July 2011. The LSCB considered the issue of publication of the reports, taking account of the letter of 10 June 2010, decided that there were such compelling reasons in this case and concluded that any decision on publication should be underpinned by the impact it was likely to have in relation to X’s current and future well-being and that the basis for this decision should be informed by advice from the psychiatric practitioners involved in his care. After careful deliberation the LCSB concluded that the overview report should not be published; that it would consider whether to publish the executive summary following a psychiatric assessment of the potential impact on X of so doing; and that the local authority would make the overview report and executive summary available to the court as part of the current care proceedings in relation to X so that all parties might have access to the relevant background information and that this be communicated to X’s parents.

• Following a further psychiatric assessment of the situation in relation to X, the independent chair of the LSCB, Mr D, wrote to OFSTED on 26 October 2011:

“The Board has now been advised by the psychiatrist treating X that it continues to be her considered opinion that the publication of any document relating to the Serious Case Review which would cause comment or discussion in the media or local community would be seriously detrimental to X’s recovery. She has advised that although X is making progress his recovery is likely to be protracted and he is about to begin a course of psychotherapy that is likely initially to be unsettling for him. It is her opinion therefore that the Executive Summary should not be published.”

Two competing factors are being balanced – the interests of transparency and open public debate versus the impact on the child.  That underpins most of the transparency debate (and given the President’s well-known views on transparency, the LSCB must have been slightly fearing the worst when the case was listed before the President. That might be why they shelled out for a QC to represent them…)

The father’s application was a free-standing one under the Children Act 1989, but on analysis, the President found that this could not be right in law, and that the proper legal mechanism (indeed the only one) would be a judicial review of whether the LSCB had behaved in an unreasonable way (specifically a way that no reasonable body in their position could have behaved) in making the decision not to publish this Serious Case Review

• In the final analysis the father’s application turns on quite a narrow point.

• The first thing to appreciate is that the LSCB is a public body, juridically distinct from and wholly independent of the local authority. It exercises public functions in accordance with the statutory scheme to which I have already referred. In accordance with that statutory scheme it is for the LSCB, not the local authority and not the court, to decide whether or not to publish the overview report and the executive summary: see Re X and Y (Executive Summary of Serious Case Review: Reporting Restrictions) [2012] EWCA Civ 1500, [2013] 2 FLR 628, paras 7, 58.

• The second thing to appreciate is that this is, as Judge Wildblood correctly said, a free-standing application. It is not an application made in pending proceedings for disclosure of documents into those proceedings. It is not a case (as Re X and Y (Executive Summary of Serious Case Review: Reporting Restrictions) [2012] EWCA Civ 1500, [2013] 2 FLR 628, was) of an application for a reporting restriction order to restrain publication of a document. It is an application by the father for an order requiring the LSCB to disclose to him a document which the LSCB in exercise of its statutory functions has decided should not be disclosed to him except upon terms that he is not willing to accept. It is, in other words, an application challenging the LSCB’s decision, a matter therefore, as Judge Wildblood said, of administrative law.

• Such a challenge, in circumstances such as this, can in my judgment be made only by means of an application for judicial review in accordance with CPR Part 54. It cannot be made in the Family Court, nor in the High Court except in accordance with CPR Part 54. On that short ground, and irrespective of the factual merits, this application is misconceived.

On that basis, the President looked at the father’s arguments

• The father has set out, both in his written statements and in his oral submissions, the various reasons why he wants a copy of the overview report. He says it should be published in the interests of transparency and so that public officials can be made accountable. He says that he should be allowed to study it with more time and scope for careful analysis and understanding than if he is merely allowed to read it at the local authority’s offices. He believes it contains material errors which should be corrected; he wants to ‘set the record straight’. He believes it contains material that will enable him to reopen the care proceedings by way of a further appeal or a renewed application to discharge the care order (thus correcting what he believes to have been a miscarriage of justice) and which may assist him in bringing a civil claim. He says that as X’s father he should be allowed to have a copy.

• Those are all very understandable reasons why the father should be seeking the relief he is, but none of them demonstrates any proper basis of challenge to the decisions of the LSCB, whether the original decision not to publish or the decision explained in Mr D’s letter of 19 September 2012. As Mr Tolson put it, and I can only agree, the father does not identify, still less demonstrate, any flaw in the LSCB’s decisions or decision-making process.

With that in mind, the father’s application for judicial review was refused – the only crumb of comfort being that one of the arguments deployed by the LSCB was crushed from a great height by the President

• I have set out the reasons given at the time by the LSCB for its decision not to publish (see paragraphs 6-7 above) and for its later decision not to allow the father a copy (paragraph 10). Those reasons are clear and readily understandable. They disclose, in my judgment, no arguable error of law. They set out matters, including in particular the advice of X’s treating psychiatrist, which plainly entitled the LSCB to conclude, as it did, that there were indeed the “compelling reasons” which had to be demonstrated if there was not to be publication. The LSCB plainly applied its mind carefully to all the relevant material and to the key issue it had to decide. Its process cannot, in my judgment, be faulted. It is impossible to contend that its decisions were irrational. Nor is there any arguable basis for saying that it wrongly struck the balance as between the various competing demands it had to evaluate: the right of the public to know; the quite separate right of the father to demand not merely access to but also to be supplied with a copy; and, most important of all, though not of itself determinative, the compelling demands of X’s welfare.

• Mr Tolson also submits that permission to apply for judicial review should be refused because the father’s claim lacks any practical substance, because he cannot demonstrate, so it is said, how any flaw in decision-making might materially affect him, nor can he demonstrate why he needs a copy of a document which he has been able to read on three occasions. With all respect to Mr Tolson I find this most unconvincing. I would not have been prepared to refuse permission on this ground. But this does not, of course, affect the ultimate outcome given my conclusions in relation to Mr Tolson’s first two arguments.