Court supplies of “whoop-ass” show no signs of running out

I noticed the other day when following some of the Brexit/Bremain debate, that we never hear about the European Wine-Lakes or Butter Mountains any more. You used to always hear that due to weird things in the Common Market, there was a huge oversupply of produce that was being added to faster than it was ever being consumed.  I wonder, idly, whether the European Community has addressed this problem, or whether it never really existed, or whether there are still Wine-Lakes and Butter Mountains but the Press has just got bored of talking about them.

Anyway, one thing that is certainly being added to faster than it could ever be consumed is Her Majesty’s Court Service supply of cans of “whoop-ass”.  Judges continue to try to use it as fast and heavily as they can, but there’s always more to spare.   Use more, behind the scenes memos must be saying, whoop even more ass. Plaintive Court managers are protesting that fresh cases of  cans of “whoop-ass”  are arriving every day, and they are blocking fire exits and that the cleaners can no longer get to their mops and tins of Vim.

Long story short – yet another bout of judicial displeasure.  (Rather more deserved than the last one)

D v E 2016

http://www.familylawweek.co.uk/site.aspx?i=ed159351

This was a case in the High Court, a private law dispute between a father and an aunt, with international elements, disputed allegations of physical abuse and domestic violence, a child with multiple problems. So of course, the ideal person to undertake the section 7 report to assist the Court was a newly qualified social worker who knew nothing about Court proceedings or what a section 7 report was.

34. On 25 February 2015 His Honour Judge Millon directed the London Borough of Newham to prepare a report pursuant to the Children Act 1989 s 7 (by reason of the local authority having had prior involvement as a result of the section 47 investigation detailed above) considering the issue of whether C should live with the aunt or the father. On 9 July 2015 Newton J directed the social worker to prepare an addendum section 7 report in circumstances where the allocated social worker had not spoken to the partners of each of the parties seeking care of C, to C’s teacher nor to the SENCO worker allocated to C nor secured Police checks in respect of the adults involved. On 21 September 2015 I was required to repeat the direction of Newton J in circumstances where the social worker had still not undertaken these tasks. The social worker had at that date also yet to speak to C alone. I also made clear that the addendum report must include a parallel welfare analysis of the three options available to the court in relation to C’s care.

35. It transpired in oral evidence that the social worker is newly qualified and has never before authored a section 7 report. Her current position with Newham is her first. The social worker told me that her academic studies (a BSc in social work) did not cover the preparation of section 7 reports. She further made clear that the training afforded to her by Newham in preparation for completing what was to be her first section 7 report, comprised a ninety minute discussion with her supervisor.

36. Within this context, it became apparent that the social worker appeared to lack even a basic understanding of the nature of the proceedings in which she was being asked to provide a report, she describing these proceedings as being “private care proceedings” on 12 August 2015 when making enquiries of the hospital at which C was born.

37. Further, it was apparent from the evidence of the social worker (and the late filing of her section 7 report) that there was a substantial delay in the legal department at Newham communicating His Honour Judge Millon’s direction for a section 7 report to the social services department. This delay on the part of the legal department meant that a newly qualified social worker who was already prejudiced by her lack of experience in preparing a section 7 report was further challenged by having limited time in which to prepare what constituted a complex piece of work in respect of a child with complex needs in a complicated family situation spanning two continents.

38. Finally, it is important, and indeed concerning, to note that each of the social worker’s reports were signed off by her supervising Practice Manager as meeting the standards required by the court following a discussion between them. In the circumstances, the mistaken view of the social worker that she was doing that which was required of her was further amplified and reinforced by her supervising Practice Manager. This, perhaps and in part, explains the social worker’s repeated failures to comply with the express directions of the court.

39. Having listened to the evidence of the social worker I was left with the clear impression that her academic social work qualification and such training, administrative support and supervision as was provided to her by her employer left this newly qualified professional poorly equipped to undertake a competent report pursuant to section 7 of the Children Act 1989 in what is a complex and demanding private law case. Such criticisms of the social worker’s work as I feel compelled to make in this judgment must be seen in this context. 

[Not quite sure it is as apparent to me that the delay was with Newham Legal Department as it was to this Judge. I have for many many years, at many many different Local Authorities, regularly received Court orders from the Court asking for a section 7 report to be undertaken within 8 weeks of the order, but receiving said order a week after the report was due. I suspect, as a result of cuts – and of course the boxes of Whoop-Ass obscuring the printer, that this is happening more and more.  With Newham Legal not being present to set out to the Court when the section 7 order was received by them, I’m inclined to give them the benefit of the doubt. Not that the Courts ever do anything wrong, ever.]

I think that it was decent of MacDonald J to set out the context that these failings were not the social worker’s fault, but the fault of a system that allocates a case that was apparently complex and difficult to a brand new worker.  (Even if you knew nothing at all about the case, the word “High Court” ought to have been sufficient to make the people allocating a section 7 think again)

Within that context, the failings of the report were considerable :-

40. The substantive section 7 report contains a significant number of factual errors, contradictions and omissions. These include the periods of time that C has been in the care of the aunt. Of even greater concern, and quite inexplicably, the social worker did not speak to the mother of C, or make any attempt to speak to her, before reaching her conclusions and filing her substantive report. Indeed, the account of the family set out at the beginning of the report simply makes no mention of the mother at all. In addition to being extremely poor practice this had significant forensic consequences. In particular, it meant that the report did not consider the significance of the mother’s allegations of domestic violence and relied solely on the father’s account of the history of the parents’ relationship. Further, when pressed in cross examination by Mr Woolley, the social worker had to concede that even now that she is aware of the issue of domestic violence she has not sought to investigate that issue further with the parties. She likewise conceded that she had not discussed with the father his motivation for making his application nor had she discussed with him his removal of C from the aunt’s care in February 2015.

41. The social worker’s substantive report contains only the most cursory examination of the factors set out in the welfare checklist. Whilst C’s wishes and feelings as expressed to the social worker are set out (about which I will say more below) they are not analysed in anyway by reference to C’s age and understanding or in the context of his ADHD or family situation. C’s health needs are summarised as being “ADHD” with “no other concerns”. There is no mention of C’s global developmental delay, the consequences of his medical conditions or the nature and level of support in place in respect of the same. In relation to the effect of a change of circumstances on C the social worker simply concludes that “if given time to prepare for a change in circumstances C will be able to prepare and adapt” but offers no explanation of why she reaches such conclusion. In respect of the capability of those seeking to care for C in respect of the father the social worker’s conclusions are limited to noting that the father and his partner are “aware” of C’s health and education needs, have identified a school for C and “report that they have routines and boundaries in place when C visits and these would be in place if he lived with them permanently”.

42. Within this context, and as I have already alluded to, the substantive section 7 report contains no parallel welfare analysis of the competing options for C’s care. Indeed, during the course of cross examination by Mr Woolley, the social worker was forced, properly, to concede that her substantive report contains no analysis of C’s best interests. The report is simply a list of facts and statements by the parties followed by a bald conclusion that C should move to live with his father. The social worker simply dismisses out of hand the aunt’s application for a special guardianship (seemingly on the ground that social worker believed such an application to be “irrelevant” in circumstances where the mother had left C with the aunt under a private arrangement). The report recommends that C have direct contact twice per year with the aunt without explaining the welfare rationale for this recommendation.

43. With respect to her first addendum section 7 report dated 30 October 2015 the picture is, regrettably, no better. The social worker had been provided with a wealth of new information from the mother concerning allegations of domestic violence and the contents of the special guardianship report. The social worker had further been provided with information from C’s SENCO, further information from the partners of each parent and the aunt and the disclosure of the relevant Police records relating to allegations of domestic violence and the mother’s medical records. The social worker had also spoken to C alone.

44. Again, notwithstanding that the social worker had been provided with this new information, some of it directly contradicting previous statements made by the father, the addendum report contains no analysis. Further, despite the order of Newton J of 9 July 2015 the social worker had not sought PNC checks in relation to the adults involved. Despite my direction there is no parallel welfare analysis, the report, once again, constituting simply a list of facts and statements with a bald conclusion that C should live with his father. The only welfare factor examined is that of C’s wishes and feelings although, once again, there is no attempt to analyse them by reference to C’s age and understanding or in the context of his ADHD or family situation. I agree with Mr Woolley’s submission that the addendum report gives every impression of the social worker having placed determinative weight on C’s wishes and feelings (an impression reinforced during the social worker’s oral evidence when she stated that C’s wishes and feelings are “paramount”). This time the addendum report recommends, again without explaining the welfare rationale, that C have direct contact four times per year with the aunt.

45. The social worker’s final, undated, addendum report is subject of the same flaws. Again, notwithstanding that she had been provided with new information, and in particular the details of the father’s conviction for violence, and the fact that she had been told by C during a home visit on 18 November 2015 that he was now unsure about what he wanted, the addendum report again contains no analysis. The social worker conceded that she had undertaken no analysis of the significance for or impact of the father’s conviction on her recommendation. Again the addendum report constitutes simply a list of facts and statements with a bald conclusion that the father “has made the necessary changes in his life to enable him the care for C” (although what those changes might be is not specified) and that C should live with his father.

46. I have of course borne in mind that a social worker’s day to day role and knowledge of the court process differs from that of a Child and Family Court Reporter (see Re W (Welfare Reports) [2995] 2 FLR 142 at 146). I have also borne in mind the evidence I have heard from the social worker at this hearing regarding her lack of experience and training. However, for the reasons set out above the substantive and addendum section 7 reports prepared by the social worker nonetheless fall well below the standard expected by the court.

47. In the circumstances summarised above, and where neither the substantive section 7 report or the addendum reports contain any welfare analysis whatsoever of the issues engaged in this case nor a welfare analysis of the competing options available for C, and where the social worker was, despite being given every opportunity, entirely unable in her oral evidence to articulate the analysis and reasons underpinning her recommendation, I have felt unable to attach any weight to the recommendation of the social worker.

48. In addition to constituting a disservice to C and his family, the failure of the social worker, under the supervision of her Practice Manager, to complete her work competently leaves the court in the invidious position of not having before it part of the information the court decided, at the case management stage, was required to determine this matter. I have however concluded that, notwithstanding difficulties with the section 7 reports, I have sufficient information to undertake the forensic analysis I am required to in order to determine the applications before me.

49. In the case of Re K (Special Guardianship Order) [2012] 1 FLR 1265 the Court of Appeal held that where work is incomplete at the date of the final hearing the court must look at the information that is available and determine whether further work is required having regard, inter alia, to developments since the work was directed, the impact of delay and the totality of the evidence available. The Court of Appeal noted that having undertaken such a review it may transpire that evidence is available that covers the ground that the missing work would have covered. In my judgment, having regard to the totality of the evidence before the court, I am satisfied that that is indeed the position in this case.

50. The London Borough of Newham should note that had I been forced to adjourn this hearing due to the deficiencies in the section 7 reports this would have been a case in which, having regard to the decision of Cobb J in Re HB, PB, OB and Croydon London Borough Council [2013] EWHC 1956 (Fam), I would inevitably have had to consider whether a non-party costs order should be made against the local authority.

Section 7 reports are always very tricky. They are vitally important documents to the Court and the parties, but they often come across to Local Authorities as a demand for a report without any covering information as to what the issues are, where the child lives, what is being alleged by the parties, and the questions that the Court specifically want assistance in answering. That is compounded by the fact that (a) They often arrive late from the Court (b) Local Authorities do sometimes sit on them before allocating them (c) They often get allocated to a social worker with very little Court experience such as here and (d) almost all Local Authorities do not operate a scheme where the reports are checked by a lawyer.

[Given that my experience of private law cases is that they are a sponge for time, and dealing with a single private law case can easily absorb hours of scarce lawyer time, I can see why that is and please don’t read this in any way as a request or desire for me to become more involved in private law cases than I already am. A single private law case can easily take up the same amount of my time and volume of emails as a dozen care cases…]

It was quite tempting to suggest that Courts and parties label particularly complex section 7 reports as such, to make it plain to the Local Authority that this case needs urgent and experienced attention. But in my days as a photocopier-monkey, I used to have a photocopier machine that had a green Turbo button on it, and if you held it down, the machine would go faster. Of course, I held it down all the time. The machine broke. A lot. By the same token, everyone would put “Complex” on all of their requests….

[It would, however, be worth Local Authorities assuming that a section 7 request from the High Court is going to need some careful handling]

On entirely separate matters, the FDAC analysis is out today.

http://www.familylaw.co.uk/news_and_comment/new-findings-show-that-fdacs-save-taxpayers-money#.Vt1xqfmLRaQ

I myself have done some impressive calculations that show that if I eat a jammy dodger today, not only will I have saved money by eating a jammy dodger rather than some beluga caviar, but that the additional sugar content of the jammy dodger will mean that I have a reduced life expectancy, which means that I won’t need to set aside money for my retirement, an impressive saving. Additionally, eating the jammy dodger has a 5% chance of assisting me not to take up smoking, and as I might otherwise smoke for the next twenty years, that’s a cost saving that I need to factor in. The time I spend eating the jammy dodger might be time that I otherwise spend on my Playstation on the Hitman Beta, and thus there is a chance that there might be medical savings to be recouped from the potential in years to come of carpal tunnel syndrome. My dog might benefit from any crumbs I have dropped, meaning a saving on dog biscuits.  I do have to offset for the additional electricity that the Roomba will consume to pick up any crumbs that the dog misses (but knowing my dog, that is quite unlikely). It is also quite plausible that if I had not had the momentary high of the chewy jamminess of the biscuit that I might eventually end up trying to compensate for this by taking up an expensive hobby such as hang-gliding with associated start up costs – the NHS could save substantially by not having to treat the broken leg that I could notionally sustain.

All in all, it emerges that every pound I spend on Jammy Dodgers results in a saving to me of £2.30.

Imagine how much I could save if I decided to eat “Pie in the Sky” instead.

/sarcasm