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Like Redbridge under troubled water (a Local Authority takes a kicking case)

 

I know that my readership tends to like a case where a Local Authority gets a good going over from the Judge – some of my readers don’t like social workers (and some with good cause), some are lawyers who represent parents and get exasperated by LA failings (some with good cause) and some are Local Authority lawyers and social workers who need to know what pitfalls might be awaiting them in Court – and some people just frankly enjoy a bit of “thank goodness that wasn’t me”.

If you are one of my readers who works for the London Borough of Redbridge, good morning, and thanks for your support, but you might want to skip this particular blog. It will spoil your coffee and possibly your day.

 

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2627.html

 

London Borough of Redbridge v A B and E (Failure to comply with directions) 2016

 

This was a High Court case heard by MacDonald J.  (By way of context, the LA could have had many far worse High Court Judges for this case, there are some where I would have feared for their survival)

 

Also by way of context, this was going to be the re-hearing of a final hearing, because at the first hearing the LA had filed their placement order late/not at all, and the Recorder had messed it up. At the Court of Appeal hearing, Redbridge had been sternly admonished for their failure to comply with directions or to seek court leave where they were going out of time. So there had already been cock-ups in this case which the LA had been told off for by the Court of Appeal – specifically about late filing of evidence and very very specifically about filing an application for a Placement Order very late.

 

With that context in mind, at an early directions hearing in the re-hearing, MacDonald J made this direction

 

  1. The matter having been remitted to the Family Division, on 28 July 2016 I made a series of directions designed to case manage this matter to a further and third final hearing on 17 October 2016, including:
  1. i) Directions for the filing of (i) the minutes of the LAC Reviews held since March 2016 by 11 August 2016 and (ii) a witness statement from any Police officer who attended the alleged incident on 27 December 2015 by 4pm on 22 August 2016;
  2. ii) A direction that the local authority file and serve (i) a final care plan, (ii) a final witness statement, (iii) a Scott Schedule of facts the court is invited to find and (iv) Schedule of Issues by 4pm on 12 September 2016;

iii) A direction that the local authority issues any placement application by 4pm on 12 September 2016 together with directions consequent thereon;

  1. iv) A direction that the mother file and serve her final evidence and response to the Scott Schedule by 4pm on 26 September 2016;
  2. v) A direction that the Children’s Guardian file and serve her final analysis and recommendations by 4pm on 10 October 2016;
  3. vi) A direction listing the matter for a further Case Management Hearing on 1 September 2016.
  1. On the face of my order of 28 July 2016 I required a recital to be included to the effect that, in light of the history of this matter, it was vital that the local authority adhered to the letter of the regulations and procedural rules that govern its conduct as between the date of that order and the final hearing. A further recital recorded that “All parties are reminded that should any issue arise that may affect the timetabling of this case then they are under a duty to inform the court of the issue and, if necessary, make an application to bring the matter back to court.”
  1. Pursuant to my order of 28 July 2016, the matter again came before me on 1 September 2016 for a further Case Management Hearing. On that date it was apparent that the local authority had failed to comply with parts of the order of 28 July 2016. In particular, the local authority had failed to comply with a number of the case management directions, including a failure to file and serve the minutes of any LAC Reviews that had occurred since March 2016 and a witness statement from any Police officer who attended the alleged incident on 27 December 2015. A further feature of the local authority’s conduct brought to the Court’s attention on 1 September 2016 was the alleged persistent failure by the local authority solicitor with conduct of the case to reply to correspondence from the solicitors instructed by the mother.

 

Despite this litany of non-compliance, no application had been made by the local authority to amend the directions in respect of the above matters prior to the expiry of the time for complying with those directions. Beyond the failures of the local authority articulated in the foregoing paragraph, the trial bundle is in what can only be described as a state of disarray, with key documents missing.

 

There was a directions hearing where the Judge describes himself as ‘expressing himself in excoriating terms’ about the failings, the case came BACK to Court for an explanation and the LA counsel had received no instructions in advance of that hearing….

 

Even today, and after I had expressed myself in what, I have no doubt, can fairly be described as excoriating terms at the compliance hearing last Wednesday, Mr Pavlou attended court this morning without having been able to secure instructions from the local authority as to when the matter would be ready for an adjourned final hearing. In particular, he had been unable even to achieve instructions as to the timetable for a further decision by the ADM. This was notwithstanding the fact that on 1 September 2016 I had directed the local authority to file and serve by 4pm on 14 October 2016 a further decision of the ADM to be taken in light of additional evidence to be filed ahead of the final hearing and not available when the initial decision was made by the ADM

 

Mr Pavlou deserves a very good bottle of Scotch from this Local Authority, it must have been a brief that kept him up at night.

 

In relation to the LA solicitor’s actions, read this and wince.  (I have anonymised the solicitor’s name, the Judge did not)

 

Finally, with respect to the allegation that the local authority solicitor with conduct of this matter has failed to reply to correspondence from the solicitors representing the mother, at the compliance hearing last Wednesday Ms E instructed Mr Pavlou (in a manner audible to the court) that she had responded to each and every email sent and Mr Pavlou advised the court accordingly. However, the signed statement that I have this morning received from Ms E concedes that she has replied to only a little more than 50% of the correspondence sent to the local authority by the mother’s solicitor.

 

(Being fair to Ms E, both of those things are actually possible – if someone sends 2 chasing emails to you saying the same thing and you answer it, you have answered all the correspondence but you have also only responded to half of the individual emails. But still, ouch)

 

Compounding all of this, when the ADM decision WAS produced, it was apparent that the ADM had taken it upon themselves to make decisions about the truth of allegations when those allegations had not been the subject of findings or even sought as findings…

 

Further, and within this context, with respect to the proposed application for a placement order, Ms Maclachlan had little difficulty at the compliance hearing demonstrating that the initial decision of the Agency Decision Maker was flawed to the extent that any application issued on the basis of the ADM decision would readily be open to attack and the decision of the ADM will have to be re-taken. In short, the ADM had taken it upon herself to make findings about the cause and provenance of the aforementioned injuries notwithstanding that the same have not been the subject of forensic investigation or findings within these proceedings. The late service of the ADM’s decision had prevented this fundamental issue being identified earlier and at a time it was still capable of remedy without impacting on the final hearing.

 

{This aspect is a little tricky – as the Court of Appeal have almost banned fact finding hearings, there are many cases where the ADM is charged with making a decision about whether adoption is the plan for the child when there is no Court finding yet about threshold or allegations. The ADM has to take a view on whether they personally are satisfied about threshold, because obviously if they DON’T think threshold is crossed,  how could they possibly decide that adoption is the plan? They must, however, avoid in their analysis and decision making specific comments as to threshold. The best way to think of it, in my mind, is that the ADM is deciding on what the plan for the child should be IF the Court is satisfied that the child has suffered significant harm. Because if the Court don’t find threshold, adoption won’t be the plan anyway. My reading is that in this case, the ADM and the social worker had gone further than just making that assumption that threshold was capable of being proven and in to dealing with specific allegations which were in dispute}

 

It won’t surprise anyone to learn that a costs order hearing is pending, with Redbridge having to show cause why they should NOT pay the costs.

 

Additionally, however,

 

 

  1. Ms Tara Vindis on behalf of the E submitted that this case is one that requires to now be put into ‘special measures‘. That is an apt analogy. Within this context, it is my intention that the local authority will provide a written report to me each Friday morning at 10.00am by way of email to my Clerk confirming the continued compliance with the timetable the court intends to impose. In the event of default on the part of the local authority, the matter will be brought back into the list for a compliance hearing. It is my expectation that the local authority will comply with its heavy duty to obey the directions of the court.

 

 

The Court also made it clear that the parties are forbidden to agree their own timetable and simply notify the Court of it, they actively need permission of the Court to change the timetable. (this approach works if the Court in question are very responsive to communications, not always the case everywhere in the country.  This is not me having a go at Court staff, who would have found it next to impossible to cope with a 40% increase in demand over the last two years even at full staffing, and we know that as a result of austerity, Court staffing levels were cut to the bone way before this surge in demand.  However, you can’t get an application in to adjust the timetable unless you’ve got very speedy communication at every step of the chain. If LA’s actually did what the President suggested and applied for extensions when they thought they were going to be half an hour late in filing a document, they would BREAK THE COURT system. And as LA’s need the Court system NOT TO BE BROKEN – you know, so that the Court can do their job of listing emergency applications, most of them have not followed the ‘apply if half an hour late’ principle)

 

  1. The courts have repeatedly reminded local authorities and those representing them of the following cardinal principles applicable to complying with case management directions made by the court in public law cases:
  2. i) Case management orders are to be obeyed, to be complied with on time and to the letter and any party finding themselves unable to comply must apply for an extension of time before the time for compliance has expired (see Re W (Children) [2015] 1 FLR 1092).
  3. ii) Agreements between the parties to amend the timetable set by the Family Court are forbidden by FPR 2010, r 4.5(3). The parties are categorically not permitted to amend the timetable fixed by the court without the court’s prior approval and every party is under a duty to inform the court of non-compliance with the timetable set (see Re W (Children) [2015] 1 FLR 1092). Within this context, writing to the court to inform the court that the timetable has been altered does not amount to seeking the court’s permission. A specific request for prior approval must be made.

iii) The burden of other work is not an excuse for non-compliance with the directions of the court. Whatever the difficulties presented by resource issues, the court will not tolerate a failure to comply timeously with orders (see Bexley LBC v, W and D [2014] EWHC 2187).

  1. iv) Casual non-compliance is not an option precisely because further harm will likely be caused to the child (see Re H (A Child)(Analysis of Realistic Options and SGOs) [2015] EWCA Civ 406).
  2. v) Failure by a local authority to comply with court orders causing unnecessary and harmful delay may result in a breach of Arts 6 and 8 and in an award of damages being made against a local authority (see Northamptonshire County Council v AS, KS and DS [2015] EWHC 199(Fam)).
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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

12 responses

  1. “I know that my readership tends to like a case where a Local Authority gets a good going over from the Judge”

    A lot of them damn well deserve it! I would say most judges let them off.

    I do give credit and well done to the good ones but I don’t really get many of those cases where I have to tell the parents, hey you got a good one!

    i have an interesting one at the moment, two adoption dates for the same child several years apart and the mother is being given a really good run around by everyone! LA called her vexatious for even suggesting it but she has proof and is JRing the lot of them.

    • ashamedtobebritish

      As she should, but there are a million more wrong turns in that case, and they’re not her wrong turns, at one point (many years ago) I was actually doubting any adoption had taken place due to the LA’s lack of paperwork and discussion with her, as we now know, the paperwork was being sent to a different family!

  2. What difference does it really make if “a Local Authority gets a good going over from the Judge” ?

    Even where damages are paid out by local authorities its a drop in the ocean, its insignificant in comparison to “their” pockets, and inconsequential.

    Its my money and the money of other taxpayers, What am I or others going to do vote the local councillors/mp’s out ? and replace them with what, other narcissistic neoliberal/laissez-faire brainwashed muppets with no backbone.!

    Even in places like Rochdale has there been any serious consequences for any of the “professionals” involved or the actual LA ? That will make others that follow them act differently out of fear of the consequences .

    With all the abuse and human rights violations and lives destroyed and the wake of destruction that has been left by the system over the years, what have the consequences been ?

    The odd SW has been passed over or resigned or took a sideways move.

    Oh and the unelected prime minister gordon brown apologised for the child “migrant” programme, that’s really made a difference hasn’t it, the system continues on the path its always been on.

    • ashamedtobebritish

      Sorry Ben, I’ve pretty much repeated what you said.
      At least we’re consistent and know what’s going on, unlike this particular la! We can’t both be wrong!

      • No need for any apology, keep repeating it you never know who might hear you eventually.

        Its those in the system that are misguided and plagued by a sort of optimism bias and are in denial just like they were when they were running the child “migrant” programme.

    • How I agree with you. I can only refer to the Court of Protection where the LA can .. .lie and lie and lie, and nobody blinks an eyelid. Mr Justice Charles judgment of October 2007 (in the public domain) is an example of whatever has gone wrong, no one except the litigant in person is to blame. Try reading this judgment

  3. ashamedtobebritish

    What a hash job! Sadly this happens more often than one would think, its rare for a judge not to just express his displeasure and carry on regardless
    imagine if the boot was on the foot of the parent, the la would apply for committal to prison, I make no apology for my repeat opinion, until someone in authority is actually criminalised for contempt of court, perjury or any other number of criminal activity that goes on, we will continue to see these cases, why would anyone fix their sloppy practice or even care what they are doing when they know there will be no consequence.
    ONE jail sentence, just one, would cement a guarantee that no parent, judge, la would ever have to face this problem again, I wouldn’t have kept giving them the chance to file, there would be no constant adjournments, the key decision maker/failure would set a precedent of a prison sentence for anyone else finding this acceptable … however there would have to be clear FOF as to fault, because I for one can see a whole bunch of admins taking the brunt, as they do now, accountability is severely lacking

    • Miranda Dealler

      Without commenting on this case, I think it is true that where everyone is responsible, no one is. Blurring responsibility is the first step towards misdemeanour.

  4. The cases I like most are those where the litigant in person wins, preferably against some well-known member of the Bar. Hence this tale: I can name the chap concerned because he is long dead.

    In 1976 I was in articles in a City firm doing a seat in the Shipping/Commercial department which I found very, very dull. I am sure there are people to whom demurrage and laytime are the stuff of excitement but I am not one of them. Anyway, one of the counsel we briefed was a man called Brian Davenport; the sort of junior who is obviously destined for silk and the Bench; but alas, he died very young. At the time he was standing counsel to the Revenue on Capital Gains Tax.

    Well: my principal (another Andrew, a member of the Northern Ireland bar with a rasping Belfast accent) and I had a conference with Brian to discuss a hearing the following week. And that morning there was reported in law report in the Thunderer a CGT case in which the taxpayer and appellant from the Commissioners, a retailer in a small way of business, was in person and Brian was for the Revenue. It was one of those cases of mind- and bum-numbing complexity which make tax law the thrilling business it is. And the taxpayer won.

    I pointed it out to Andrew, who gave expression to the dour grimace which was the nearest he ever got to a smile, and said nothing about it.

    And at the end of the con, after Brian had expressed himself optimistically, Andrew said (apply the accent yourselves) “We’ll be all right this time, Brian. The other side have counsel!”

  5. Reblogged this on | truthaholics and commented:
    “iii) The burden of other work is not an excuse for non-compliance with the directions of the court. Whatever the difficulties presented by resource issues, the court will not tolerate a failure to comply timeously with orders (see Bexley LBC v, W and D [2014] EWHC 2187).

    iv) Casual non-compliance is not an option precisely because further harm will likely be caused to the child (see Re H (A Child)(Analysis of Realistic Options and SGOs) [2015] EWCA Civ 406).
    v) Failure by a local authority to comply with court orders causing unnecessary and harmful delay may result in a breach of Arts 6 and 8 and in an award of damages being made against a local authority (see Northamptonshire County Council v AS, KS and DS [2015] EWHC 199(Fam)).”

  6. Anyone ever compiled a really comprehensive list of LA Judicial kicking cases by type?, I am sure it would be very useful and maybe every parent should be given access as soon as a LA gets involved!

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