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Appeal due to ‘incompetent’ representation (appeal refused)

Posted on December 18, 2015 by suesspiciousminds

 

I think we’re all familiar from American movies and TV shows with the concept that you can overturn the result of a legal case if your representation was so poor that it resulted in a mistrial. It’s actually very rare in England. This is a criminal case where the person convicted of his wife’s murder sought to appeal on exactly that basis.

I’d best make it clear from the outset that the Court of Appeal decided that the representation was not sufficiently incompetent to make the conviction unsafe, but they did have quite a lot to say about it and suggested that the Bar Standards Board take a look at the case. I will absolutely stress that as a result, the Court of Appeal have made NO findings about Mr Wolkind QC’s conduct or competency, and the Bar Standards Board have not even considered the case yet. So I am simply reporting what was described in the case.

 

R v Ekaireb 2015

 

http://www.bailii.org/ew/cases/EWCA/Crim/2015/1936.html

 

Mr Ekaireb was convicted of his wife’s murder in 2006. His wife’s body was never found, nor did anyone find blood or a weapon. There were two possible accounts – either his wife left him extremely suddenly and nobody has ever seen her again, or he murdered her.  That’s a difficult murder trial to run, because it is going to be based on looking at every scrap of circumstantial evidence and building on it if you are the Prosecution, or knocking it down if you are the Defence.

 

The legal test on an appeal being allowed due to incompetence of representation is :-

 

  • It was agreed that the law relating to the basis upon which an appeal against conviction grounded upon the incompetence of the advocate should be considered was correctly stated by Buxton LJ in R v Day [2003] EWCA Crim 1060 at paragraph 15:

 

“While incompetent representation is always to be deplored; is an understandable source of justified complaint by litigants and their families; and may expose the lawyers concerned to professional sanctions; it cannot in itself form a ground of appeal or a reason why a conviction should be found to be unsafe. We accept that, following the decision of this court in Thakrar [2001] EWCA Crim 1096, the test is indeed the single test of safety, and that the court no longer has to concern itself with intermediate questions such as whether the advocacy has been flagrantly incompetent. But in order to establish lack of safety in an incompetence case the appellant has to go beyond the incompetence and show that the incompetence led to identifiable errors or irregularities in the trial, which themselves rendered the process unfair or unsafe.”

 

  • At paragraph 52 of the decision of this court in R v Bolivar & Lee [2003] EWCA Crim 1167 the then Vice President, Rose LJ, had expressed the test:

 

“Professionalism requires that a barrister should do his job properly, disregarding such matters. Of course, if his performance on behalf of a client is affected by such matters, different considerations apply. Hence, in our judgment, the test to be applied in relation to a barrister’s conduct, is: was it Wednesbury unreasonable and such as to affect the fairness of the trial?”

Both counsel submitted that the formulation was not apposite to the present case because that concerned advocacy affected by the personal circumstances of the barrister. We agree. In any event, the formulation by Buxton LJ is the more modern formulation. It is simpler to apply; it avoids consideration of how Wednesbury unreasonableness is to be applied to the conduct of an advocate; and it is more in accord with the formulation approved in a judgment of the Privy Council in Sankar v. State of Trinidad and Tobago [1995] 1 W.L.R. 194 at 200F–G.

 

 

It isn’t relevant that the client wasn’t impressed, or that he didn’t like the tactical decisions or style, or that another barrister might have done better – the performance has to be so flagrantly incompetent that it made the process unsafe , because of identifiable errors or irregularities in the trial.  As far as I’m aware, there isn’t a reported case in care proceedings of a decision being overturned on an application of incompetence of representation, but I’m fairly sure that the Court would make use of this high test if one were made.

 

It certainly wasn’t a great start for Mr Wolkind QC, who had been selected by the client as a result of reading his website http://www.topcriminalqc.co.uk/ rather than through chambers website.

 

  • The trial was originally scheduled to begin on 7/8 October 2013, but then moved back to 21 October 2013. On 10 October 2013 Mr Wolkind informed his solicitor and the appellant that the first conference would be on 14 October 2013. The conference was brought forward as a result of the reaction of the appellant and his solicitors. In an e-mail of 9 October 2013, Mr Kaye reported that he was very concerned that Mr Wolkind was, “far from up to speed and was not concerned about that being obvious”. There was nothing that called that assessment by an experienced solicitor into question.

 

 

 

What were the alleged irregularities here?

 

 

  • It was the submission made on behalf of the appellant that where the prosecution case was based entirely on circumstantial evidence, the defence depended on competent cross-examination of the witnesses called by the prosecution, competent advice on whether the defendant should give evidence, competent examination of the defendant and a very carefully prepared speech for the defence. We are satisfied that Mr Wolkind told Mr Skelley on a number of occasions that it was a closing speech case.
  • It was not suggested that Mr Wolkind was incompetent in the following respects:

 

i) His advice on tactics.

ii) His advice on calling witnesses, including the appellant.

iii) His challenge to the admissibility of evidence.

iv) His cross-examination of the witnesses called by the prosecution.

v) His preparation for calling the appellant and his examination in chief of the appellant.

vi) His agreement to the extensive agreed facts which were put before the jury and to the witness statements which were read to the jury.

 

  • The case for the appellant presented by Mr Orlando Pownall QC was that Mr Wolkind’s incompetence related to the final speech for the defence and fell into two categories:

 

i) a ‘severe criticism of style’ which itself amounted to incompetent representation in that he:

a) failed to present the defence in an appropriate and focused manner;

b) often resorted to patronising the jury, conducting personal attacks on counsel for the prosecution. He indulged in a number of inappropriate attempts at humour which were bound to alienate the jury;

ii) a failure to confront the matters advanced by the prosecution by displaying (as had been reflected in submissions of no case to answer and in his opening submissions), a reluctance fully to engage with the issues before the jury in stark contrast to the detailed way in which the prosecution had advanced the case.

It was contended that Mr Wolkind had made the speech he did as the result of his failure before and during the trial to prepare himself properly for the trial and his lack of engagement in the trial and his doing of other work during the period he should have devoted himself to the defence of the appellant. He had substituted for proper preparation a speech that failed to rebut the case for the prosecution and relied instead on inappropriate diversions.

 

You can perhaps see that in a murder trial based on circumstantial evidence, that if the silk keeps telling the junior, solicitor and client that it is a “closing speech case” then you are probably leading them to expect that your closing speech is going to be great. In fact, the client sacked the silk after the closing speech was made (before the jury had retired to consider the case). It’s probably also not a great plan to turn up late on the day that you are going to be giving that closing speech. Also probably not great to have got other work in your diary on the day you are supposed to be delivering said speech – it sort of gives an impression that you are keen to get it done and dusted.

 

 

  • Before turning to the closing speech, it is necessary to refer to Mr Wolkind’s conduct during the summing up. Very little of the summing up was delivered on Friday 13 December 2013, as a juror became ill. When the judge resumed on Monday 16 December 2013, Mr Wolkind arrived part of the way through the morning and then left during the course of the afternoon. The appellant decided in those circumstances to terminate his instructions to Mr Wolkind and to continue with Mr Skelley alone. Mr Wolkind told us that he had been late because of a delay in a video conference he had arranged, according to his diary, for 10:00 for another case, where the defendant was held in prison. His diary showed that at 15:00 he had a meeting in another case. The consequence of Mr Wolkind’s dismissal was that he was not present on the following day when there was an exchange between Mr Altman and the judge about the answers of the defence to the detailed case made by the prosecution. We refer to this at paragraph 48 below.

 

 

 

 

The speech itself (and gosh, I wish they’d printed it in full). Mr Skelley is the entirely blameless junior (who had sent very detailed notes of suggestions for the speech on detailed points)

 

(d) An analysis of the speech

 

  • Mr Altman QC who appeared on the appeal for the prosecution helpfully provided us with a detailed analysis of Mr Wolkind’s closing speech. From that analysis and our detailed consideration of the closing speech, the following emerges:

 

i) There were six themes of criticism of the prosecution case that formed the basis of Mr Wolkind’s speech: (i) “random attacks”, (ii) “speculation”, (iii) “pet theories”, (iv) “prejudice”, (v) “distortion” and (vi) “mistakes”.

ii) The speech was developed round these themes. All the points that had been put forward by Mr Skelley in the three documents to which we have referred, were incorporated, sometimes with specific attribution to Mr Skelley, but there was little more.

 

  • We have asked ourselves the question, therefore, whether the speech can be described having reached a level of incompetence that called into question the safety of the conviction or the fairness of the trial. We cannot so describe it. Although it will be for others to consider wider issues, it was a speech that covered the points and it had a structure, however ill-judged the themes and the structure might have been. We accept as amply justified the criticism made by Mr Pownall that it was ill-judged, patronising and contained inappropriate attempts at humour. It also contained observations about prosecuting counsel which, as Mr Skelley told us, were completely unprofessional; no advocate should have put these observations into a speech, as we shall observe at paragraphs 59 and following below. However it did not reach a level of incompetence that called into question the fairness of the trial or safety of the conviction.
  • As we have reached that view, it would not be appropriate for us to make more general findings in relation to Mr Wolkind’s lack of preparation and conduct of the case. That must be a matter for the Bar Standards Board to which we direct the matter be referred.

 

 

 

 

The Court of Appeal were NOT satisfied that the case met the test for saying that the conviction was unsafe as a result of failures or irregularities in the process, but did, as I outlined at the beginning make some comments, set out below.

 

Concluding directions observations

(a) Websites

 

  • Our attention was drawn to Mr Wolkind’s personal website. We were surprised at its content and tone. However whether it is within the proper bounds of professional conduct for a member of the bar, particularly one who has had since 1999 the status of being one of Her Majesty’s Counsel, is a matter which we direct be referred to the Bar Standards Board for their consideration.

 

(b) Carrying out other work

 

  • We have had to make some express findings in relation to other work that Mr Wolkind was carrying out during this very complex murder trial. The fact that Mr Wolkind was doing so plainly caused the appellant very considerable concern and led to his dismissal of Mr Wolkind. However, it would not be right for us to make any observations. The terms upon which any barrister, particularly one of Her Majesty’s counsel, is free to engage on other work during the conduct of a case is a matter for the Bar Standards Board, subject to an overriding duty to the court in respect of the case before the court. We therefore direct that general issue be referred to the Bar Standards Board for their consideration.

 

(c) Defence closing speeches

 

  • Unsurprisingly we were not referred to any decided case in which an incompetent defence speech has provided the grounds for a successful appeal. As was demonstrated in Farooqi the trial judge has the responsibility and ample scope to ensure that a defendant’s case is accurately before the jury. That task may involve correcting or amplifying a closing speech. Should that prove impossible it may, in an extreme case, be necessary to discharge the jury. In the present case no such criticism has or can be made.

 

(d) Personal criticism of opposing advocates in addresses to the jury

 

  • Finally, there is one feature of the conduct of this case which judges must ensure ceases immediately and not be repeated in any case. That conduct is making in an address to the jury personal criticism of opposing advocates in contradistinction to criticism of the prosecution case.
  • We were told that the practice of making personal criticism of prosecution advocates has become a feature of some addresses to the jury made by defence advocates. In this case the personal criticism of Mr Altman and Mr Little by Mr Wolkind should not have been made in his addresses to the jury.
  • If any advocate has a criticism of the personal conduct of an opposing advocate that is a matter that should be raised before the judge who will deal with it then and there, though, in what we hope would be the rarest of circumstances, it could be referred to the professional disciplinary body.
  • The conduct of a trial before a jury requires proper and professional conduct by all advocates in speeches to the jury. As any personal criticism of the conduct of an opposing advocate is a matter for the judge, it can form no proper part of an address to a jury. The regrettable departure from proper standards of advocacy by making personal criticisms of advocates of an opposing party in an address to the jury must therefore cease. No court will tolerate its continuance.

 

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Lawyers who use hallucinogenic drugs – should we Panda to them?

Posted on December 14, 2015 by suesspiciousminds

 

 

Sorry, it continues to be a slow law December.  This came to my attention via http://www.loweringthebar.net  – as that website reports on chiefly American law weirdness he has so much material that he was able to throw this one away as a footnote in a round-up.  With the paucity of good stuff coming out of Bailii this month, I’m happy to spin an entire piece out of it.

 

‘I thought woman in bed was a giant panda,’ says homeless ex-lawyer dressed in fishnets and G-string who crept into bedroom

 

That’s the headline of the story in the Irish Independent. And the story below does not really disappoint.

 

A former lawyer charged with offences when he was found in a stranger’s house  (in Bayswater, London – not an area known for its dense population of Giant Pandas), when he was wearing fishnets and a purple g-string; deployed as his defence that he was so high on drugs at the time that he believed the woman was a giant panda and that he had just been looking for somewhere to fall asleep.

 

In his subsequent police interview, he claimed that he went into the block of flats to get a bed for the night.

‘I honestly didn’t see a woman on the bed, I didn’t see any children in the bed, I honestly thought it was a big panda bear in the bed, that’s what it looked like to me.

‘I had taken some drugs but I am pretty certain that’s what I saw, I didn’t see any woman, I didn’t see any kids… were they under the panda?’

 

The jury actually cleared him at the trial at Southwark Crown Court after just thirty minutes of deliberation. I can only think that it was so quick because all of the jurors were desperate to get to the pub and tell their mates about the day they’d just had.

 

In the event that the Judge’s summing up is available, I really would rather like to see it.

 

I am aware, of course, of a historical precedent for a man taking substances and believing himself to be the Lizard King , but Panda King is new to me.

 

 

As the spirit of Jim Morrison, even I have to say that this guy was taking too much

As the spirit of Jim Morrison, even I have to say that this guy was taking too much

 

[Frankly, the Spirit of Hunter S Thompson might be telling this guy that he needs to take a break and cut down. As a rule of thumb, if your substance use has got to a point where Morrison and Hunter S Thompson could be considered voices of reason, things are out of hand. ]

 

http://www.independent.ie/world-news/europe/i-thought-woman-in-bed-was-a-giant-panda-says-homeless-exlawyer-dressed-in-fishnets-and-gstring-who-crept-into-bedroom-34252199.html

 

 

If that was up your street, find out why a Turkish Court has authorised experts on Lord of the Rings to testify in a criminal trial about the character Gollum here

Gollum Experts to Testify, Says Court

 

 

 

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Thursday daftness – the picture round

Posted on December 10, 2015 by suesspiciousminds

 

Can you guess the Judge from the picture of a celebrity with a similar-ish name?

 

 

Many of the Judges are regulars in these blogs for their excellent and interesting judgments and no offence of any kind is intended. All of the Judges in question are far more photogenic than these images  (well, possibly not the first one)

 

If you are upset that I’ve missed your favourite out, it is because my mind went numb after looking at pictures for number 9….  And heck, if you can find a celebrity soundalike for Mrs Justice Pauffley, good luck to you.

 

 

  1.   celeb 1

 

 

 

 

2.   celeb2

 

 

3.

What? This isn't a celebrity!!! Outrage.

What? This isn’t a celebrity!!! Outrage.

 

 

4. celeb4

 

 

5.

This one is a bit obscure, so the logos behind are a clue...

This one is a bit obscure, so the logos behind are a clue…

 

6.

Cham-on!

Cham-on!

 

7. celeb7

 

8.

Only one of them. And no, I don't know which is which...

Only one of them. And no, I don’t know which is which…

 

9.

Yes reader, for your benefit, I looked at Google images of this woman... this is the only good photo of her

Yes reader, for your benefit, I looked at Google images of this woman… this is the only good photo of her

 

 

I hope I can remember all of the answers tomorrow….  If anyone is guessing, don’t do it in the comments in case anyone else is trying.

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Family Justice Council debate on adoption

Posted on December 5, 2015 by suesspiciousminds

 

I think readers will be interested in this debate, which featured some very impressive speakers presenting both sides of the debate and also some extremely well put questions and discussions generated by the audience. I’m very proud to see so many of my regular commenters and readers involved in this.  These are big important issues and I’m glad that discussions and debates of this kind are taking place, and that people who have passion and stories to tell on both sides are having the chance to get involved in them.

 

Click to access 9-family-debate-transcript.pdf

 

 

[Edit  – have just realised that perhaps not all of you have the software to open a pdf – I’ll keep an eye out to see if there’s a link that doesn’t use pdf.  It is 37 pages long, so I can’t really cut and paste it here]

 

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Friday Daftness – Statement of the Respondent to an application for a non-molestation order

Posted on December 4, 2015 by suesspiciousminds

 

 

 

  1. I am C. I was previously in a relationship with H, but that has come to an end. I am aware that H has asked the Court for a non-molestation order that I no longer harass him or come within 500 metres of his property. I oppose that application.
  2. It is correct that H’s home is in a secluded location on the moors, and that as he asserts it is unusual to see passers-by, there being no other houses nearby to visit. However, as he knows full well, I like to go for a run to keep myself fit. Sometimes that run is on the moors and it may be that by chance he has seen me nearby whilst I was having a run.

 

  1. Therefore, it may be correct that from his home, H has seen me on occasion, running up the road, or running up the hill. I enjoy running up that road, or running up that hill. I would suggest that this was no problem.   I accept that my running gear, consisting of a white voluminous frock is unorthodox, but due to the wind on the moors, wearing running gear that has very poor wind-resistance means that my runs burn more calories than if I were wearing traditional sports gear.  I absolutely and bitterly dispute that he heard me “wailing and caterwauling”. I suggest that in fact I was singing along with my ipod, and that a great many people like and admire my singing voice (which I would accept has a certain unusual character).

 

 

  1. It is correct that within our relationship, I did display jealousy. I think that it is unfair and unkind for him to characterise me as “too hot, too greedy”.  [Due to a misprint in his statement, I originally read this as being ‘too hot, too greasy’  hence my angry text message to him, which I now apologise for] I would also point out that whilst I did have jealousy, it was of a very similar nature and degree to H’s own temper.

 

  1. Although it is correct that I told H that I hated him, I loved him too.

 

 

  1. During the good times, we would spend time on the moors (although it was quite windy there) and we would roll and fall in green. It was rather distressing to see in paragraph 4 of H’s statement that he described these times as “rolling in the deep” – this must have been with an entirely different woman. I had always suspected that he was having a relationship with a woman named Adele, and this only reinforces my suspicion.  [I had picked up the phone several times whilst we live together, and heard a woman’s voice say “Hello…. it’s me”]

 

 

  1. H’s allegation that I was standing outside his window shouting up “It’s me, It’s C, I’ve come home” is utterly refuted and denied. He may have heard me, whilst I was engaged in a run on the moors shouting that I was “so cold” but I absolutely never asked him to “let me in through your window”
  2. I do accept that I sent him scented letters. I would say that he received them with a strange delight.  [I did not personally observe this reaction whilst hiding in bushes or through the lens of my telescope, he said it on his Facebook page]
  3. If anything, it is I who need protecting, because he purchased some hounds and set them loose on me.

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Police ignore Judge’s order , to help Latvian family escape social workers

Posted on November 30, 2015 by suesspiciousminds

 

This is Christopher Booker’s latest column

 

http://www.telegraph.co.uk/comment/12022882/Police-ignore-judges-order-to-help-Latvian-family-escape-British-social-workers.html

 

There is not a judgment up yet, that would allow me to give you an account of what has happened from someone who has heard both sides of the case, rather than just one side. I will keep an eye out.

 

The column does have the usual Booker hallmarks – the account provided by a single source, the cosying up to the President of the Family Division as being the only person who is trying to put things right, his habit as a ‘journalist’ of confusing making an argument with simply putting words in quotation marks to show his contempt for them,  his misunderstanding of many basic legal principles, and his unappealing habit of throwing the Judge’s first name around like confetti  – I imagine this is done to belittle them and diminish respect for them. It is a cheap shot.

 

It still surprises me, though it really shouldn’t after all this time, that when there is a Court case where the Judge actually uncovers the sort of dark dealings by social workers or a cock-up or mistake by professionals that led to children being wrongly separated from families, Booker is always silent.  Where are his columns on Al Alas Wray, on the foster carer who used racially abusive language to the mother, on the mother who wasn’t told for six months that whilst she’d been in a hospital having mental health treatment that social workers had taken the child away from the neighbours she’d left them with, on the Hampshire case from last week?

There are genuine scandals that happen in family Courts – appeal Courts showing why less senior Judges had made mistakes or had not been fair, Circuit Judges uncovering wrong-doing or errors or even conspiracies involving lying to the Court. They do happen – you’d be a fool to say that they didn’t.  And maybe those uncovered cases are the tip of the iceberg, and it is right for journalists applying the usual codes of practice that govern journalism to dig and investigate and bring them into the light. I’ve no problem at all with a journalist attacking the system and wanting to reform it. But if you were a columnist crusading for reform of the family justice system, why wouldn’t you be interested in writing about these cases where the facts absolutely demonstrate that there had been something rotten in the State of Denmark? They aren’t conspiracy theories, they are facts.

I’d welcome a column from Booker on the Hampshire case – it deserves attention, he’s a ‘journalist’, he’s angry about social work corruption and bad practice – he’s a good person to write the story.

 

Note to Ian from Forced Adoption – I am sure that you can give me and other readers chapter and verse on the background to this column. Please don’t.  I’ll read it from the Judge who heard both sides of the story rather than just one. Perhaps the Judge still got it wrong, people are only human, but I do think that hearing both sides doesn’t half give you an advantage before reaching a conclusion.

 

As ever, if I read the reported judgment and it shows that Mr Booker is factually correct in the substance of his claims, I will let you all know.  (I haven’t had to do that in four years of running the blog and checking Mr Booker’s reports of dire misdeeds against the actual judgments, but there’s always a first time).  Equally, if I think that the reported judgment shows that mistakes were made or that those involved were treated badly, I’ll say so.  I ran stories on Al Alas Wray, on the foster carer who used racially abusive language to the mother, on the section 20 abuses, on the Hampshire case where social workers lied, and sadly I think that I’ll have to run similar cases in the future. But I show the readers where my source comes from, and they are free to read that source for themselves and reach their own conclusions.

 

 

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Friday daftness – sample chronology

Posted on November 27, 2015 by suesspiciousminds

 

Date                                                                   Significant Event

 

June                                                                  Bryan purchases an instrument. It is understood that he paid something appproximating £3.38, certainly no more than that.

 

Early July 1969                                               Bryan visits GP with lacerations to his fingers.

 

mid July 1969                                                 Bryan becomes drawn into a group of adolescents that he had met through school.  Jimmy is certainly involved. Jody also believed to be.

 

At around  this time, reports come in of Bryan repeatedly standing on the porch of an unnamed girl’s mother.

 

 

4th August 1969                                      Jimmy quits the group of adolescents. Bryan spents more time on porches, and at drive-ins.

 

18th August 1969                                   Jody gets married. Bryan by this stage is effectively living on unnamed girl’s porch. Her mother reports that it seemed to last forever.

 

31st August 1969                                      Bryan confirms to professionals that these were the best days of his life.

 

1991                                                            For a few weeks, Bryan becomes the most hated man in the world. Then everyone remembers how much they love what happened to him that summer.

 

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Poppi Worthington – the long-awaited judgment

Posted on November 26, 2015 by suesspiciousminds

Poppi was a little girl, aged 13 months, who died in December 2012.

 

Within care proceedings relating to Poppi’s siblings, a finding of fact hearing took place as to what caused her death and whether it meant any risk for those siblings. That took place in March 2014 and has not been published until this week. An inquest also took place and the Coroner described her death as “unusual and strange”.  Part of the reporting of the inquest discussed the existence of the finding of fact hearing and in particular that the Guardian in the case had prepared a schedule of professional failings.

 

Of course the Press and public would be very interested in those failings, and if there are lessons to be learned, one would want to learn from them.

The police decided in March 2015 not to charge the father with any criminal offences as a result of Poppi’s death (it taking 2 1/2 years to get that decision) and as a result, the father sought to overturn the finding of fact hearing.

The Judge therefore decided that whilst allowing a re-hearing of the finding of fact hearing, it would be potentially prejudicial to publish the results of the March 2014 hearing and have the Press comment on it. A decision was made that part of it would be published in the Winter of 2015.

 

(All of that is discussed here)

 

Poppi Worthington

 

And the (heavily redacted) fact finding judgment is now published

 

Cumbria County Council v M and F 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/4886.html

 

The redactions really remove any scope for discussion of what happened to Poppi and why the father came under suspicion and what conclusions were made in March.  But it does outline the professional failing identified by the Guardian and endorsed by the Court.

 

What there ISN’T, at least within the published judgment, is any evidence or claim that social workers had failed to protect Poppi before her death or should have seen it coming. The criticisms are instead about the failings of various agencies to properly investigate it and whether the siblings had not been properly protected. Still very important, but at this stage, there’s nothing within the judgment that suggests that Poppi is another Baby P or Daniel Pelka (where professionals ought to have foreseen the risk to her and failed to act to keep her safe).   Until P’s death, none of the other children was subject to statutory intervention by the local authority and the mother cared for them all satisfactorily. There were no concerns reported by health, education or social agencies. 

 

What were the professional failings afterwards though?

 

  • 85. The observations below are made in the context of these good practice protocols and regulations, which appear to have had no effect in this case:

    The national multi-agency protocol: Sudden Unexpected Death in Infancy (SUDI), known as ‘the Kennedy Protocol’. This provides a framework for the collaborative investigation of all unexpected deaths in infants and children up to the age of 2 years. The emphasis is on finding the cause of an infant’s death, incorporating both medical and forensic investigation. Responsibility for oversight of the operation of the protocol rests with the Local Safeguarding Children Board.

    • Cumbria LSCB’s own complementary protocol at the time of P’s death: Sudden and Unexpected Deaths in Children and Young Persons. This guidance, since updated, applied to the sudden and unexpected death of a child under the age of 18 years.
  • The Local Safeguarding Children Boards Regulations 2006, which set out the criteria for holding serious case reviews.
  • 86.Cumbria Constabulary
  • It can come as no surprise that, well over a year since the death of this child, no decision has been taken about a criminal prosecution. As a result of the police view that Dr Armour may have jumped to conclusions, a decision was then taken by senior officers not to investigate until her report was received. Due to the extreme delay in that process, there was no real investigation into P’s death for nine months. Such minimal investigation as thereafter took place was inevitably affected by the delay and by actions not taken at an earlier stage. Instances may include:
    • Items at hospital not preserved for forensic analysis: ambulance sheet, paramedic’s gloves, hospital stretcher sheet.
    • Items at home not preserved for forensic analysis: P’s pillow, her clothing (pyjama bottoms if any), the parents’ sheet, any possibly penetrative item, the father’s computer.
    • Scene not secured: loss of P’s last nappy despite the presence of police officers.
    • Decision by DI S and DCI F not to visit the home, despite it being nearby. According to the national protocol, a senior officer should immediately attend the home to take charge of the investigation and ensure that evidence is intelligently preserved.
    • No reconstruction with the parents at home, so that their accounts could be understood and investigations focused.
    • No forensic medical examination at the time of death. Swabs were not taken until post-mortem. Under the Cumbria protocol, police are entitled to take anal swabs automatically. Delay in taking swabs may prejudice the forensic analysis.
    • No engagement of a paediatrician with specialist knowledge of investigating sexual abuse, in order for there to be a physical examination of the child, a viewing of the home and a report for the pathologist.
    • Dr Armour’s initial views were not clearly passed on to the local authority for safeguarding purposes.
    • The parents were not interviewed formally until August 2013.
    • No analysis of either parent’s mobile telephone or Facebook accounts.
  • Samples were not sent for analysis until after receipt of Dr Armour’s report. For example, the swabs from the father’s penis, taken on 12 December 2012, were not sent for analysis until 2 August 2013.
  • No statements taken from any witnesses (paramedics, nurses, doctors, family members) until September 2013, at which point three statements were taken (from the ambulance crew and from Dr B).
  1. Many of these matters were canvassed during the evidence of DI S, who led the enquiry at the outset, and she was driven with evident reluctance to accept a number of failings in the inquiry. Evidence was not taken from DCI F, the senior officer with overall responsibility for the investigation. He may therefore have further information to provide.Cumbria County Council
  2. Given the history, it can likewise come as no surprise that, well over a year after P’s death, the family still awaits a decision about the future of the other children.
    1. At the outset of the proceedings, the local authority was directed to file a statement explaining its actions. This led to a full account from the Assistant Director of Children’s Services. In it, she accepts that
    • Legal advice should have been taken at the outset, and certainly before the family returned home. In fact, the first time that legal advice was taken in this troubling and extremely serious case was on 30 August 2013. Even this was reactive (to the parents’ arrest) and even then there was no decision to issue proceedings for another eight weeks.
  • Proceedings should have been initiated as soon as it became clear that P had suffered injury prior to her death. Had that happened, the court would have been able to get a grip on the matter and ensure that proper investigations were carried out much nearer to the time of P’s death. The local authority shares responsibility with the police for the fact that this did not happen.
  • Even when legal advice was given on 23 September that care proceedings should be issued, a decision of the Legal and Placement Panel two days later rejected this advice. Another month passed before proceedings were issued in reaction to the mother’s rejection of supervision.
  1. I would add that the children should have immediately been medically examined and that in S’s case, a skeletal survey should have been performed. Furthermore, the local authority’s expectation that the mother should supervise the father in relation to this number of children was in my view wholly unrealistic, not to say unfair to her.
  2. In the result, the children were returned home without any effective child protection measures being taken. Fortunately there is no evidence of them suffering harm in the ten month period before they were removed from the parents’ care. The Coronial investigation
  3. It is not clear, and I have not asked, how HM Coroner proceeded in this matter. Concern has rightly been raised about the gross delay in production of the pathology reports. Cumbria’s protocol expects that within 48 hours of the post-mortem, the pathologist will provide preliminary findings to the Coroner. In this case, Dr Armour said that she wanted to have every piece of information before she committed herself. In particular, she was awaiting the results of routine histology on the leg bones. She did not accept the suggestion that the delay was unacceptable. Bearing in mind the interests of the surviving children, that was not a practical approach, though she was not to know that the consequence of her silence was that no other investigation was taking place.
  4. I have no information about the decision of the coroner to release for burial the body of a child who died in unexplained and possibly suspicious circumstances when a pathology report had not been received, a decision precluding the possibility of a second post-mortem. The NHS Trust
  5. In the light of the expert evidence, and having heard from the paramedics, doctors and nurses who were present on 12 December, it is apparent that they did everything they possibly could to resuscitate P. It is sadly likely that by the time she came into their hands she had already died.
  6. Unfortunately, Dr B, the locum paediatrician, had only been employed at the hospital for less than three weeks. He was not aware of either the national or local protocols for infant deaths. He was therefore unable to lead the forensic medical investigation in an appropriate manner.
  7. Neither Dr B nor, more pertinently, Dr W, completed the workbook provided as part of the Cumbria protocol. This would have ensured a methodical examination at the time of death and the timely taking of swabs.The Local Safeguarding Children Board
  8. Regulation 5 of the Local Safeguarding Children Boards Regulations 2006 sets out the functions of LSCBs. This includes the requirement to undertake reviews of serious cases in specified circumstances. Regulation 5 provides that a review must be held where abuse or neglect of a child is known or suspected and the child has died. This is mandatory: see page 66 of the statutory guidance in “Working together to safeguard children” (March 2013). Moreover, a review may be held even when the mandatory requirement does not apply.
  9. A sub-group of the Cumbria Local Safeguarding Children Board met on 4 February 2014. The meeting took place at police headquarters and was attended by six persons. The minutes show that DCI F, the principal investigating officer, played a prominent part, although he invited another member to lead the discussion. The conclusion was that the criteria for a serious case review were not met, although the matter would be reviewed in six months following the outcome of the family proceedings and any criminal proceedings.
  10. It will certainly be appropriate for the conclusion of the subgroup of the LSCB to be independently reviewed as it would appear to conflict with the regulations. Collective responsibility
  11. While I reach no conclusions, consideration by others of the above matters may lead to the view that P’s death did not receive the professional response to which she and her family were entitled.

 

 

The re-hearing has either just finished or is currently before the Court. With that in mind, no speculation please about what might have happened to Poppi or who may have been responsible if anyone.  The Court will reach and publish those conclusions and the Court is in possession of all of the facts, whereas we only have a sliver of them.

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Social workers slammed for lying on oath

Posted on November 23, 2015 by suesspiciousminds

 

I know the title seems pure clickbait, since it is the sort of thing that is alleged quite often, but this is a case where the Judge did actually make that conclusion.  It involves social workers and managers who set out to change the parenting assessment conducted by another worker (who the Judge found to be blameless) so that it reached different conclusions and painted a wholly different and negative picture and then lied to the Court about it. This is social workers interfering with the parents right to a fair trial. It really is deeply shocking stuff.

 

A, B, C, D and E (Final Hearing) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B186.html

 

The case was decided by His Honour Judge Horton, and involved Hampshire County Council. Some of the workers involved no longer work at Hampshire and they are not spared.

 

 

12. This is I hope an unusual case. I certainly have not previously come across one quite like it either at the Bar or as a judge.

 

13. My previous judgments explain these comments but in my experience it is exceptional to find a case in which there has been deliberate and calculated alteration of a report prepared by one social worker in order to make that assessment seem less favourable, by another social worker and the Team Manager; the withholding of the original report when it was ordered to be disclosed and the parties to the alterations lying on oath one of them twice, in order to try to cover up the existence of the original report. Those people are referred to and named in my December judgment but given the enormity of what they did and the fact they still work as social workers it is right that I should name them again so that practitioners and members of the public coming across them are aware of their shortcomings in this case.

  1. Sarah Walker Smart the children’s Social Worker lied twice to me on oath. I was told during this hearing that she has been promoted to Team Manager within this authority.
  2. Kim Goode, Sarah Walker Smart’s then Manager, was the person who initiated the wholesale alteration of the original report and who attempted to keep the truth from the parties and me. At the time of the last hearing she was District Manager for the Isle of Wight. I was told during this hearing that she is still in post.
  3. Lisa Humphreys was Kim Goode’s Manager. Her evidence was deeply unimpressive. She made a ‘hollow’ apology to the parents during her evidence; she regarded a social worker lying on oath as “foolish” and she failed to accept any personal responsibility for what had gone on under her management. At the date of the last hearing she was Assistant Director of Children’s Social Care with Lambeth Borough Council.
  4. In my December judgment I concluded that the parents’ and children’s Article 6 and 8 Rights had been breached. The children had been removed illegally and the parents had not had a fair parenting assessment carried out due amongst other things to all professionals both childcare and legal, failing to identify M’s communication difficulties and the need for a psychological assessment. I therefore at the parents’ suggestion, directed that Symbol a parenting assessment organisation which specialises in people with learning and communication difficulties, should carry out a full parenting assessment. This was to be coupled with individual therapy for both parents. This ‘dual’ approach had been suggested by Dr Halari a highly qualified adult clinical psychologist who had seen each parent, prepared reports and who gave evidence. The plan was for the therapists and assessors to work together in order to give the parents the best possible chance of making the agreed and much needed changes to their parenting.

 

 

 

The December judgment had escaped my attention, so here it is

 

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B227.html

 

The portions setting out the failings of the Local Authority are long, but because they are so powerful, I will set them down in full   (I really can’t believe that I missed this judgment first time around).  Underlining, as ever, mine for emphasis (though I could almost underline every word). Apologies that the paragraph numbering goes all over the place.

 

  1. The factual matrix underpinning the breaches
  2. Removal
  3. Social worker Ms X was allocated to these children on 27 October 2011 and remained their social worker until Sarah Walker Smart was allocated the case in June 2013. During this time she formed a working relationship with the family.
  4. She was clearly concerned at A and B’s lack of schooling, failure to engage fully with health professionals and issues of basic neglect. Such was her concern that she initiated the PLO process on 12 April 2012. The PLO letter was clear and Ms X spelt out what was required. See Mrs Randall’s comments at D131.
  5. As early as 11 May 2012 Ms X had identified that the parents were unsure how to work with professionals and that the parents become aggressive and hostile.
  6. By April 2013 Mrs Randall’s opinion based on the recordings of Ms X was that little had really been achieved during 18 months of PLO process. D133
  7. In late Spring early summer 2013 Ms X obtained a new post within the authority. She made her last visit to the family on 4 June 2013. By this time Ms X had begun compiling information for Core Assessments on all the children and it was made a condition of her leaving that she completed Comprehensive Core Assessments. I heard evidence that I accept that Lisa Humphreys and Kim Goode were exasperated by Ms X’s failure to complete them.
  8. The new social worker allocated to the children was Sarah Walker Smart. She was new to this team and relatively inexperienced in child protection work. Her manager remained Kim Goode who was and is extremely experienced in such work having been in it for 18 years.
  9. Kim Goode and Sarah Walker Smart carried out an introductory joint visit on 20 June 2013. I am satisfied that Kim Goode and Sarah Walker Smart found a situation that they had not been fully prepared for by Ms X’s case recordings. This was not only in relation to the condition of the home and children but also the attitude of the parents. The mother in particular was difficult and hostile. I pause there to record that whilst I make criticism of the parents it must be seen in the context of their then unidentified difficulties and the attitude of Kim Goode who I am quite sure did nothing to calm the situation. I have seen and heard Ms Goode. She is a strong willed, forceful, opinionated person who it would be difficult to challenge effectively or at all. Her manner of answering during cross examination amply demonstrated this.
  10. As a result of what they saw and as a result of there having been 18 months without sustained change Ms Goode and Ms Walker Smart decided that the case should be taken to a legal strategy meeting. This took place on 24 June 2013. see K136.
  11. It was decided that the Comprehensive Core Assessment “with concerns” should be concluded as soon as possible, that care proceedings should be instigated and that a new PLO letter would be written. This was delivered to the parents on 27 June which was the same date as Sarah Walker Smart’s first statement.
  12. On 11 July Ms Walker Smart visited the home and found things largely the same as before but that the children’s presentation was “Ok”.
  13. On 12 July Care Proceedings were issued and on the 15 July directions given including a direction for the LA to file and serve the “current assessments to which the Social Work statement refers”. A21
  14. Also on this date the Housing Officer visited the home. He was clearly concerned by the condition of the property; a number of problems with the condition of the property that had not been reported and the overcrowding but I am satisfied he does not “condemn” it or say that it is dangerous. He did believe that the family should be temporarily or permanently re-housed.
  15. On 15 July the court made directions including giving a hearing date for a contested ICO.
  16. On 16 July Ms Walker Smart spoke to the Housing Officer. She purportedly interpreted what he said as the house was condemned, dangerous and unfit for the family to remain in. It is clear from Ms Walker Smart’s e mail of the same date that she was trying to get Mr Sibley to say that the property was unsafe and dilapidated due to the parents’ neglect and makes it clear that “we are planning to remove the children” and “need as much evidence as possible based on the home conditions being unsafe”.
  17. I am satisfied that by this date Kim Goode and Sarah Walker Smart had decided that the children should be removed from their parents care and that they intended to bolster their case by involving the housing department. This is clear from the wording of the e mail and I interpret the e mail as pressure being put on the Housing Officer. It was clear from his evidence to me that he was not prepared to do so.
  18. Lisa Humphreys told me that she had approved the cost of B&B and that she had not approved the removal of the children from their parents. This does not fit in with the content of the e mail and I have trouble believing that Kim Goode would construct a plan for removal without the approval of her DSM.
  19. On 17 July at 09:00 Sarah Walker Smart made a visit to the home. It was she said her view that the children were “no longer safe in the home and that if they remained they could experience significant harm”. In reality I doubt that anything was very much different from before and I am certain that the grounds for immediate separation were not there. She reported on what she saw to Kim Goode.
  20. At 11:17 that day Kim Goode set out an action plan. That action plan clearly expected the police to use their administrative powers to remove the children. She does record that if the police won’t agree to do so then the mother is to be asked to go to B&B with the children. Ms Walker Smart never offered this option to the mother and I am satisfied from the video footage and her evidence that this option was never in her mind. It is probable that Kim Goode never discussed this option with her.
  21. At 15:30 that day a joint police and social services visit took place. The LA accepts that the visit and removal was unlawful and breached the family’s Human Rights. The details of the breaches are set out later in this judgment.
  22. I have viewed the Body Worn Camera footage. I can well see why the LA makes the admissions it does. The removal was a flagrant breach of this family’s Human Rights. There were insufficient grounds for such action and it is clear the police felt that too as they did not try to use their administrative powers; the correct procedure was not followed; no true consent was obtained, and that which was obtained came from F under duress. Further he did not have power to give consent for the older two children as he did not have parental responsibility a fact Ms Walker Smart should have known.
  23. I am asked by F to find that the use of the police was a manipulation to coerce the parents. I am not satisfied that the social workers were deliberately trying to manipulate the police although I am satisfied that the effect on the parents was to coerce them. The parents, mother in particular could be verbally aggressive and had been so to Ms Goode. In circumstances where it had been decided to remove the children from their parents and it could reasonably be anticipated that the parents could be hostile, it would be appropriate to involve the police to avoid there being a breach of the peace. However, the video footage shows that the situation was badly handled with 8 police officers and two social workers descending on the parents and presenting them with no choice but to relinquish their children. There were no grounds for such removal, there was no discussion, no alternatives offered and it was clearly the intention of Ms Walker Smart to remove the children from their parents’ care come what may by asking for consent to s20 accommodation if the police did not act.

 

  1. Factual matrix underpinning the failure to disclose material evidence
  2. This relates to the Comprehensive Core Assessment that Ms X completed and sent to Kim Goode for what has been described “Quality Assurance”.
  3. Ms X completed writing her CCA on 18 June 2013. See P125. The Assessment contained both positives and negatives. It was therefore a balanced report. She e mailed it to Kim Goode.
  4. On 27 June 2013 Sarah Walker Smart swore her first statement asking the Court to read her statement along with the ” Core Assessment (July 2013) completed by Ms X” (my emphasis).
  5. On 10 July Ms Melanie Kingsley asked Kim Goode to forward Ms X’s core Assessment. Kim Goode replied saying she just wanted to “pad out the conclusion before it goes off”.
  6. On 15 July the court directed the LA to file and serve the “current assessments to which the Social Work statement refers”.
  7. On 16 July Kim Goode made substantial changes to Ms X’s Comprehensive Core Assessment (CCA) which are recorded by the word processing programme by way of tracked changes. All the substantive changes made are negative. The changes change the tenor and conclusions of the report completely. The picture painted by it is now wholly negative and would if accepted, have the effect of substantially improving the LA’s case for removal of the children, probably permanently. In my judgment these changes amounted to a wholesale rewrite and were not a proper use of the Quality Assurance system.
  8. Ms X never approved the changes.
  9. Kim Goode sent the track changed document to Sarah Walker Smart on 17 July at 13:02 who made few if any and no substantial changes. She could not make many changes as she had little knowledge of the family due to her brief involvement. She signed the assessment as if it were her own and it was served on 6 August.
  10. Ms X’s CCA was not filed in accordance with the court order.
  11. An order was made for the CCA to be filed by 30 July. Ms X’s version was never filed.
  12. Solicitors for the parents asked on numerous occasions for the disclosure of the document referred to in Ms Walker Smart’s statement and for any documents prepared by Ms X.
  13. On 22 August 2013 Melanie Kingsley in response stated in an e mail: “an assessment was started by Ms X but not concluded. The decision was taken that because Ms X no longer works for the department, the new social worker SW would compile an entirely new assessment, as it would not be appropriate for her to complete another person’s partially completed piece of work. Accordingly Sarah Walker-Smart wrote and filed a new Core Assessment which is in this bundle. There is nothing outstanding from Ms X which may be filed with the parties”
  14. I am satisfied that this e mail gave a deliberate and entirely false impression. Kim Goode and Sarah Walker Smart knew that Ms X had completed her assessment. The problem was that Kim Goode did not like it. In her opinion it did not fit in with her assessment of the family’s circumstances. Kim Goode knew Ms X had completed it because she had changed it. Ms Walker Smart knew Ms X had completed it as she had seen the tracked changed document which was obviously based on Ms X’s completed work.
  15. I am also satisfied that the legal department knew of the existence of the Ms X piece of work as Ms Kingsley had referred to it in her e mail of 10 July.

 

[A quick break here to say “Holy F**ing s**t!”]

 

  1. Twice more did Ms Coates ask for Ms X’s “draft” to be filed and served. Ms Kingsley replied on 13 November 2013 “there is nothing that can be filed”. Again this was patently untrue.
  2. On 31 March 2014 Sarah Walker Smart commenced giving evidence before me. A transcript of her evidence is at 72.1 of the transcript section.
  3. She was asked in chief: “Have you ever seen a core assessment completed by Ms X? “No” “Can you explain the reference to one in your statement?” “.. there was an assumption that Ms X had completed a Core Assessment..so I relied upon an assessment that did not exist. That’s completely my error.” I then asked: “You have given the date of July 2013 which rather implies that you had some basis to believe that there had been a Core Assessment carried out. What was your factual basis for that?” Answer:” The team manager” Kim Goode, “assumed that Ms X had written one”.
  4. I asked whether Kim Goode had checked for the Core Assessment. I was told that she had and that she could not find it.
  5. Sarah Walker Smart went onto to say that she had not checked. She said: “I’ve never seen a Core Assessment in Ms X’s name.”
  6. I have considered this evidence very carefully and been mindful of the two fold test in the R v Lucas direction that I must give myself when encountering lies.
  7. I am satisfied that her evidence that she had never seen a completed Core Assessment by Ms X was a lie. Sarah Walker Smart had seen a completed Core Assessment by Ms X. She had seen the tracked changed version e mailed to her by Kim Goode. I am satisfied on the balance of probabilities that this was a deliberate lie to try to deflect attention from the existence of that document. I do not make this finding lightly or willingly but the evidence drives me to it. This lie was repeated in her evidence given to me on 25 November 2014.
  8. I am also satisfied that she lied when she said that the reference to such an assessment in her statement was a “mistake” based on an “assumption”. I am satisfied that the reason she mentioned it was because she had seen Ms X’s Core Assessment and she did not think there was anything wrong in referring to it. It was only afterwards that the import of what she had done became clear. In my judgment this is the only logical reason why she would have mentioned it. Her attempts to say it was a wrong “assumption” on the part of herself and Kim Goode was a fabrication. Again I do not reach this conclusion lightly but it is an inevitable one. Again she repeated this lie in evidence in November.
  9. Ms Walker Smart had the opportunity to disclose the existence of the Ms X assessment during the April part of this final hearing but did not take it. She chose to try to get away with the deception she had practised. I made it clear at the end of that hearing that I was worried about this issue and that I required full enquiries to be made to see if such a document existed. See 72.45 line 30 of the transcript of Ms Walker Smart’s evidence.
  10. Lisa Humphreys was also at court during the April hearing. She knew that the parents’ advocates wanted Ms X’s assessment disclosed and she knew of its existence yet she did not then or afterwards bring its existence to the attention of the court, the new social work team or the legal department. She could have accessed it easily as it was located in her ‘Outlook’ programme on her computer.
  11. The completed Ms X Comprehensive Core Assessment was eventually disclosed inadvertently as part of the disciplinary proceedings’ file in relation to Ms X in early August 2014. Kim Goode had initiated disciplinary proceedings against Ms X as a result of what she saw were serious failings in her work. As a result Ms X was dismissed from her employment. Her health is now so poor that she was unable to give evidence. I do not know whether her poor health and the disciplinary proceedings are linked but they cannot have helped her. This is not the place to comment on the appropriateness of that investigation, its fairness or its conclusions but I do ask the LA to robustly review their conclusions and decision in the light of this judgment and all that is now known about this case.
  12. Kim Goode’s involvement in this deception was examined in the November hearing.
  13. I am satisfied she knew of Ms X’s completed CCA as she had changed it. I am also satisfied she knew that the parties and court wanted it disclosed and she had decided that she would not.
  14. At one point I asked her: “So it was a deliberate decision by yourself not to let the court and the parents have” the Ms X Comprehensive Core Assessment and the guardian. Is that right?” “Yes” she answered.

 

A second break to say again “Holy f**ing s**t!”

 

 

  1. Whilst she tried to persuade me that she did this out of concern for the children as she felt the assessment was not accurate, I find this suggestion breathtaking. This is a manager with 18 years experience deliberately flouting the lawful request of the parents for disclosure of information and more to the point flouting court orders for such disclosure. At one point she tried to suggest that she was unaware of the duty to disclose, which I find as Mr Ker-Reid put it “incredible” in both senses of the word.
  2. There was a particularly telling piece of cross examination by Mr Ker-Reid when he put this question to her: “You were overtly, determinedly, seeking to deceive courts of justice, put your head together with other professionals in your department, whether legal or social workers, to tell judges of the Family Court that there was not an assessment by Ms X which you knew there was? That is right is it not?” Answer: “It is but I..” Q: “It is”. Answer: … “gave the explanation”. Q: “We have your answer, done”.
  3. I am satisfied that this question and answer perfectly sums up the thinking of Kim Goode and her approach to this case. I heard Kim Goode’s “explanation” and I am not satisfied by it. Her perception of whether the assessment was correct or not was not a reason for non-disclosure particularly in the face of a Court order. It was as she conceded dishonest to have said that there was no assessment from Ms X. I am satisfied that this “explanation” was in fact an attempt to deflect blame away from herself.
  4. I have already commented on my impression of Ms Kim Goode from my observation of her in the witness box and from her work on this case. She is a strong personality and I am satisfied that those subordinate to her would find it hard to challenge her. This atmosphere is probably what led Ms Walker Smart into such grave error. Whilst this may be an isolated incident in her career I have very grave concerns as to Kim Goode’s working practises in this case and in my judgment a thorough review of her work and management style should be undertaken by the LA.
  5. I have made some comments about the involvement of Lisa Humphreys in this case. I found her to be a very strong and forceful personality. Whether her management style fed into or off Kim Goode I cannot say but I am clear that they are similar in management style. Subordinates would find it hard to say no to or challenge her.
  6. Her response to hearing of Ms Walker Smart’s lies to me was astounding. She thought it was “foolish”. I am afraid that is not the way I see it and it is not the way she should have seen it. Such a comment makes the lies seem like minor misdemeanours which they are not.
  7. I also found her failure to accept personal responsibility for what has happened in this case depressing. Whilst of course managers cannot be responsible for rogue employees and their decisions are only as good as the information they are given by their subordinates, they should at least sound as if they mean any apologies they give. The one she gave the parents during her evidence did not sound heartfelt and I noted that there was no apology to the Court for the lies that had been told or the unnecessary delay that had occurred by those under her. It is probable that she saw no harm in withholding the Ms X CCA as she seemed to me to be fully in support of withholding it, because in her view it was not an accurate piece of work.

 

 

Wow. Just wow.

 

 

  1. Conclusions and Findings on Human Rights breaches
  2. It follows from my conclusions above that this family’s Human Rights have been breached. The parties have produced one combined document for me to consider covering the breaches that the parents, A, B and the Guardian allege have occurred and the LA’s response to each of them. In short the LA has albeit late in the day, conceded all of the general breaches alleged and most of the specific facts that go towards those general conclusions. I have amalgamated the various breaches from this composite document and my findings and condensed them into a manageable form. My findings are as follows.
  3. Removal of the children on 17 July 2013
  4. The LA accepts and I find that it acted unlawfully and disproportionately by removing the children from the care of the parents on 17.7.13 purportedly pursuant to section 20 of the Children Act 1989. I am satisfied that it did this by:
  1. a) Taking a decision to pursue police protection in preference to the provision of alternative accommodation;
  2. b) Failing to consider making an application for an EPO or short notice ICO;
  3. c) Failing to consider whether any family placements were available;
  4. d) Failing to inform the parents of the available options such as B&B
  5. e) Failing to encourage the parents to seek legal advice or the advice of family or friends;
  6. f) Acting without the Father’s informed consent to the removal;
  7. g) Acting without the consent (informed or otherwise) of the Mother;
  8. h) Acting without the consent of any person with parental responsibility for A and B;
  9. i) Purporting to act under section 20 of the Children Act by seeking the consent of the parents in the presence of 8 uniformed police officers presenting an overt threat of police protection;
  10. j) Acting in knowledge of the Father’s expressed belief that the police would act to remove the children in any event;
  11. k) Removing the children in circumstances which did not reach the test for an emergency removal;
  12. l) Purportedly justifying the removal at the time and subsequently by way of reasons which were incorrect and/or known to be untrue by the Social Worker namely that the home had been condemned; and
  13. m) Failing to obtain the wishes and feelings of the children contrary to section 20(6) of the Children Act 1989.
  14. n) Failing to have in place a policy document guiding procedures when social workers attend a family with police, such document having been directed by HHJ Levey DFJ to be produced in or about January 2013;
  15. o) Upon it becoming known to the Team Manager and/or District Service Manager that the Social Worker had acted disproportionately by removing the children from the care of the parents on 17.7.13 the LA should have taken steps to rectify matters by offering to reunite the children and parents in alternative accommodation but failed to do so.
  1. Failure to disclose material evidence
  1. The LA accepts and I find that it acted unlawfully by materially failing to comply with its duty to disclose documents which modified and/or cast doubt on its case and/or supported the case of the parents by:
  2. Failing to disclose the Comprehensive Core Assessment of Ms X as directed as early as 15 July 2013 or at all prior to its inadvertent disclosure pursuant to a court order on 11.8.14 relating to disclosure of disciplinary proceedings concerning Ms X;
  3. Failing to disclose the ICS Core Assessments of Ms X as directed or prior to 1.4.14;
  4. Failing to disclose ICS notes with the District Service Manager’s comments due to inconsistent practices in recording information by her;
  5. Failing to disclose case recordings until directed to do so by the court on 3.3.14; and
  6. Failing to inform the parties of the existence of the video of the children’s removal and/or disclose the video itself until directed to do so by the court in May 2014. This video was in the possession of Kim Goode and viewed by her within weeks of the unlawful removal. She knew that the removal was unlawful but failed to do anything about it.
  7. The non-disclosure of the Comprehensive Core Assessment of Ms X in the face of repeated requests from the parties and directions of the court was deliberate and the decision not to disclose the document was known to Sarah Walker-Smart, Kim Goode, Lisa Humphreys and the Legal Department.
  8. The LA misled the court and the parties as to the existence of a Comprehensive Core Assessment undertaken by Ms X.
  9. In particular the LA does not dispute and I find that Sarah Walker Smart lied on oath on 31 March 2014 when she said she had never seen a core assessment completed by Ms X; that Kim Goode had looked for one and had not found one and that the reference in her first statement to such an assessment was therefore an error.
  10. Further, Sarah Walker-Smart repeated the lies on oath on 25 November 2014.
  11. The LA’s failure to comply with its duty of disclosure caused an incomplete picture to be presented to the Guardian and to the court within the LA’s evidence filed before 7.4.14.

 

  1. Denial of fair opportunity to participate in decision making
  2. I make the following findings in relation to this head.
  3. The parents were not consulted about the removal of the children.
  4. Neither the Court nor the parents were provided with the investigations and recordings which precipitated the applications to separate C from A and B or to apply for a section 34 order to “terminate” contact;
  5. In respect of the application to terminate contact, Hampshire County Council relied upon reports from foster carers upon which they did not seek the parents’ instructions. The foster carers’ reports were inconsistent with Hampshire’s own evidence such as contact supervisor recordings;
  6. Hampshire County Council undertook sibling assessments without discussing the children and their attachments with their parents, or indeed observing the children together;
  7. Hampshire County Council failed to convene a Family Group Conference or take any steps to explore potential family support, which led to their overlooking the Gs and issuing placement applications although the parents did not bring the existence of the Gs or their willingness to offer care to the attention of HCC until August 2014;
  8. It is alleged that the parents have been excluded from LAC and PEP reviews and all medical appointments for all of the children. I have not been addressed in submissions on this point and so can make no findings. If it is thought significant I will hear further submissions on this point;
  9. Hampshire County Council failed to provide the parents with contact notes and foster carer records in accordance with the Court’s direction or on a regular basis. This has deprived the parents of the ability to address any identified issues and effect change.
  10. Hampshire County Council had been “put on notice” of their Human Rights breaches by the order of 07.04.14 (A121); further order on 08.05.14 and Mother’s detailed skeleton argument setting out both limbs of her argument which was filed and served on 17.06.14. However, they continued to deny any wrongdoing until:
    1. On or about 10.11.14 in respect of the unlawful removal;
    2. On or about 14.11.14 in respect of the material non-disclosure. Indeed this was described by Hampshire on 29.07.14 as a ” last minute fishing expedition speculatively raised” [135].
  11. Failure to promote family life
  12. The LA breached the children’s right to family life by failing to set up or maintain regular family or inter-sibling contact during proceedings up until 31 March 2014.
  1. I am also satisfied that FC2 particularly Mrs FC2 became inappropriately attached to the children she was looking after. She allowed herself to become emotionally involved so that she tried to “claim” them for herself. This was not picked up upon by the social workers quickly enough. They were getting reports from FC2 that conflicted with the reports of their own contact supervisors yet this was not properly or timeously investigated. It was this failure to control FC2 that led to no proper inter-sibling contact taking place and E not seeing his parents for a considerable period of time.
  2. As a result of the failures of Hampshire County Council to provide all relevant material and to conduct the matter in an open and fair way, the care plans for A and B as presented to the court for the hearing commencing 31 st March 2014 were particularly distressing in that they provided not only for separation of the siblings but that for B he was to have very restricted contact with his parents and siblings; such care plans were wholly unjustified and were changed by the then Service Manager Lisa Humphreys on or about 1 st April 2014 it being noted that this was without the court or any party having heard any evidence on this issue.
  1. Other failures
  1. The evidence presented to the court in the statement of Sarah Walker-Smart dated 27.6.13 upon issue of the LA’s application and in support of its application for interim care orders was unfair in that it was unbalanced and in parts inaccurate.
  2. As conceded immediately in evidence by Ms Gibson the LA purported to but failed to undertake a full and fair assessment of the parents’ ability to care for the children by way of the assessment by the family centre worker and the social work assessment of Sarah Walker-Smart.
  3. The LA purported to but failed to undertake a full and fair sibling assessment in particular because they were undertaken without sibling contact being observed.

 

 

I have read law reports where Local Authorities have got things wrong. I have read law reports where Local Authorities have got things badly wrong. I have read law reports where they have been unfair, or stupid, or failed to act promptly, or acted in a knee-jerk way. I have read law reports where the Court disagreed with their recommendation and told them that they had badly misunderstood the law. But I’ve never read anything like this. It is utterly astonishing.  It is every conspiracy theory about what social workers do, come to life.

It is shocking, it is appalling. It is a damn scandal. It brings the profession into disrepute. The only tiny crumb of saving grace in the whole affair is that those involved were caught and that His Honour Judge Horton has shone a light into this scandal. I can only do my small part by telling my readers about it.

 

Back to this November 2015 judgment.  (I haven’t read the end of it yet, but I hope it ends in a whacking big cheque being written, or indeed the judgment being sent to the Attorney General)

The Judge had sent everyone away in December to conduct fresh assessments and also for the parents to be given therapy – there were problems with their parenting, but clearly in light of everything above, they had not been given a fair assessment.

There is a bit in the judgment about the mother clandestinely recording meetings with professionals (it is rather hard to blame her for doing that)

 

During the mother’s evidence she mentioned that she and F had covertly recorded a meeting with the Guardian and some contacts. The M had used her phone and F a digital recorder that looked like a slightly fat pen. He produced the pen recorder and 4 recordings. As the Court security staff had not come across such a device before I took steps to inform HMCTS of the existence of such devices. The recordings provided by F were not listened to by me and no one sought to rely on their contents.

 

 

Sadly, the assessment work with Symbol – an independent specialist assessment service had not gone as well as one might have hoped.  Against the backdrop of everything above, it is perhaps no surprise that the parents found it difficult to trust professionals.

 

         She [The Symbol worker] told me that it became clear that the parents have an absolute antipathy towards the LA and social workers to the extent that they even objected to Ms Hinton being involved in the assessment. In her and Symbol’s opinion it was an impossible task for the parents to work with or trust any professional which was a significant barrier to moving on. She said that whilst professionals were not challenging or agreeing goals, things went fine but when they tried to work with the parents the situation broke down “sharply, remarkably and quickly”. Anyone who attempted to monitor or change their parenting behaviour would she opined, meet great hostility.

116. She was criticised by the parents for not acknowledging properly or at all the enormity of the emotional toll and distress on the parents and the children caused by the events of the summer of 2013. In particular Symbol were criticised for not going through the judgment with the parents and not recording any discussion about these topics. If they had it was submitted, the parents could have ‘moved on’ and the assessment would not have stopped

The Judge spends several pages discussing the assessments and the evidence, and that I’m afraid would make an already long article too long. Sadly, he reaches this conclusion

 In my judgment it has not been evidenced that the parents have made the necessary changes that could allow them to make sustained improvements to their parenting styles or allow them to co-operate with professionals. Whilst they have demonstrated some ability to engage with therapy and have attended a parenting course they have not demonstrated that their fundamental attitude towards professionals has changed. Indeed I saw evidence during their oral evidence of their continued, deep seated mistrust and their tendency to accuse professionals of lying when challenged or disagreed with. Furthermore, I am satisfied that the failure of the Symbol assessment has reinforced in their minds that professionals cannot be trusted and this will make it even more difficult than before for professionals to work with them.

One can quite see how it would be extremely difficult for any parent to trust professionals after that December hearing – even with wholly fresh professionals to work with and therapeutic help, there was just too much damage done for the relationship to be repaired.

406. I am therefore satisfied that I must make care orders with respect to all five children to Hampshire County Council. I approve the plans for their placements as they are the plans that will promote the children’s welfare throughout their minority and protect them from significant harm. I am satisfied that no lesser intervention or order can achieve this aim due to the parents’ inability to work with professionals, in particular the LA.

It is very hard to feel comfortable about this. The Judge was clearly a Judge who was prepared to take on the Local Authority when they had been unfair and dishonest and who set up fresh and independent assessments and ensured that the parents got therapeutic help. So the parents got a fair hearing from the Court. But weren’t they just screwed by a system that says “you’ve got to work with professionals” and condemned them for not being able to, even though almost anyone in the same position would not have been able to trust again after the most shocking breaches of trust?  Very hard.

Even though I’ve had nothing at all to do with this case, or any of the sort of things that have happened in it and I never would, today is one of those days where I feel ashamed to even be part of the Family Justice system.

The damages bit hasn’t yet been dealt with. When I see the report of that, I will share it.

I was reminded by the parties that the parents and children have outstanding damages claims for the breaches of their Human Rights. As I indicated at the beginning of the hearing I have agreed with Hampshire’s DFJ that he should hear this part of the case. I will direct as part of the order arising from my judgment that a directions hearing be listed before him at his convenience.

417. I was concerned to learn that the three social workers who I previously criticised had not apparently been subject to disciplinary proceedings. I direct that my December judgment and this one be sent by the Director for Children’s Services to the Director of Social Services, Ofsted and those social workers’ supervisory bodies with a view to them considering whether further action against them is required.

I know that my commenters will want to talk about this case, and will probably be very cross about it. Please try to stay away from defamatory remarks (what the workers did in this case and what you think about it is fair game, what you think of them as people is for somewhere else, not here)

I also know that some of you will be wondering about perjury.  It is true that lying under oath is a criminal offence.  The police aren’t able to investigate perjury unless directed to do so by a Judge and a prosecution for perjury can only take place if the Attorney General authorises it

The Perjury Act 1911

1 (1)If any person lawfully sworn as a witness or as an interpreter in a judicial proceeding wilfully makes a statement material in that proceeding, which he knows to be false or does not believe to be true, he shall be guilty of perjury, and shall, on conviction thereof on indictment, be liable to penal servitude for a term not exceeding seven years, or to imprisonment . . . F1 for a term not exceeding two years, or to a fine or to both such penal servitude or imprisonment and fine

section 13 of the Perjury Act 1911, which sets out the corroboration needed to prove perjury can sometimes be difficult

A person shall not be liable to be convicted of any offence against this Act, or of any offence declared by any other Act to be perjury or subornation of perjury, or to be punishable as perjury or subornation of perjury, solely upon the evidence of one witness as to the falsity of any statement alleged to be false.

 

[I.e Victoria saying that Colin is lying is not sufficient, there needs to be something more. Here of course, there were the computer records and emails in addition. The criminal standard of proof is high, and perjury prosecutions are very rare. And I am no expert in criminal law, so the furthest I can go is to say that it is a possible case where the Atttorney General might have a decision to make if asked]

 

Misfeasance in a public office is the other one that comes up from time to time. Not a criminal offence, but a civil tort.  That’s probably not much use because the compensation for that would be something that could be awarded under the Human Rights Act for the breaches already found in any event.  Though it is possible that the damages would be higher.

[Watkins v Home Office 2006

There is great force in the respondent’s submission that if a public officer knowingly and deliberately acts in breach of his lawful duty he should be amenable to civil action at the suit of anyone who suffers at his hands. There is an obvious public interest in bringing public servants guilty of outrageous conduct to book. Those who act in such a way should not be free to do so with impunity.[1]

[1] [2006] UKHL 17, paragraph 8.  ]

 

And there’s the social work regulatory bodies who could be asked to take action. Social workers can and have been disciplined for bad conduct.

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Barking up the wrong tree

Posted on November 17, 2015 by suesspiciousminds

 

Sometimes a case comes along that I just can’t resist, although it is not really family law.

 

Moosun and Others v HSBC (T/A First Direct) 2015

http://www.bailii.org/ew/cases/EWHC/Ch/2015/3308.html

 

This is a case where there had been a quarrel between Ms Moosun and her bank (or rather former bank) and just about every form of litigation that could be issued by her had been issued. The bank responded by asking for a civil restraint order to prevent her issuing any more hopeless litigation.

 

Why I am I writing about this? Well, because of these paragraphs.

 

  1. The second application is dated 19th October 2015 and seeks to strike out the claim in action HC-2015-004041 which was issued on 21 September 2015. That claim is sought to be brought by Mrs. Moosun, her two infant children, and two dogs who are identified as Goldie, aged 18 months, and Diamond, aged 2 years. Again, Miss Wilmot-Smith takes the point that the claims by the children should be struck out as they are brought in circumstances where no litigation friend has been appointed on behalf of the children and no order has been made permitting the children to bring proceedings. That is right, and for the same reasons as in relation to the first claim, I shall strike out the claims by the children.
  2. Miss Wilmot-Smith also makes the obvious point that dogs are not capable of bringing legal proceedings. Among other things, CPR Part 2.3(1) defines “claimant” as a person who makes a claim, and a dog is not a person. I also cannot see how a dog could give instructions for a claim to be brought on its behalf or be liable for any orders made against it. There are a whole host of other reasons why proceedings by dogs must be void, and accordingly I am satisfied that in so far as the claim purports to be made on behalf of the two dogs it should also be struck out.

 

Yes, the dogs were also suing the bank.

 

I also note that in previous litigation

 

For her part, Mrs. Moosun raised a considerable number of points concerning the actions by the bank, both as a matter of contract and in relation to an alleged denial of her rights under the European Human Rights Convention, among other things by reason of the fact that the original order made by District Judge Banks had been made in her absence. She also alleged that what was happening to her involved “satanic freemasons”.

 

Well, now we all definitively know (for those of us who had any doubt at all) that dogs cannot bring Court proceedings. That is merciful to me, because otherwise my dog would be bringing claims under the Canine Rights Act because I made him return from his holiday in Cornwall, where he was spending his days playing on beaches, swimming in the sea and eating Cornish pasties.

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