RSS Feed

Tag Archives: compensation

Well, up against quite a lot of competition, here is the worst case of the year (breach of fair trail, HRA damages, scandal)

 

Oh this is a BAD one.  LA social worker, lawyer, and to an extent counsel take a kicking, as do the police.  If you work for Wakefield, I’d skip this one.   Everyone else, I’m afraid this is a must read.

 

GD and BD (Children) 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/3312.html

 

 

  • There are before the court two linked applications brought under the Human Rights Act 1998. The first application in time (10 December 2015) was filed by two children, namely GD, a girl now aged 9, and BD, a boy now aged 4. The second application (18 December 2015) was filed by their mother (MD). In each case the Claimants seek awards of damages and declarations. The claims arise from the conduct of two public authorities, Wakefield Metropolitan District Council (hereafter “the Local Authority”) and West Yorkshire Police, in the context of public law proceedings under Part IV of the Children Act 1989 between February and November 2015. In each case the claims for damages have been agreed – with the public authorities each agreeing to pay one-half of the agreed sum: £10,000 for the mother, and (subject to the court’s approval) £5,000 for each child. Significant concessions have been made by both authorities since the proceedings began, and these in large measure establish the grounds for the declarations.
  • I have attached to this judgment, as Annex A and Annex B, a composite schedule of the concessions by the respondent authorities.
  • Annex C contains an Executive Summary of this judgment.
  • Additional to the formal concessions, the Local Authority has also sent a full letter of apology to the mother (dated 28 June 2016). In that letter, the Local Authority acknowledges that the allegations which it made in the proceedings against the mother, namely that she was a sexual risk to her children as a result of having perpetrated gross sexual act on her daughter, were “horrendous”; the authority confirms that it accepts “without reservation” that MD did not abuse her daughter or allow her daughter to be abused by the father. I do not regard it as appropriate to annex this letter to the judgment, but note its contents. The Chief Constable of the West Yorkshire Police has openly apologised to the Claimants (see Annex B [11] below).

 

This whole debacle sprang from the police, as part of a wider child pornography investigation, discovered 5000 indecent images of children on the father’s computer in April 2015  and the father was arrested.  One of those images was a 30 second video clip of a woman abusing a child.

The police formed a suspicion that the woman was the mother, and that the child was one of the two children of those two parents. T  Obviously, there were legitimate grounds to believe that the children were at risk from the father (though his arrest removed him from the home).   He later pleaded guilty and was imprisoned. The suspicion that the woman in the video was the mother and that the victim was one of the children was something that had to be properly investigated.

DS Hudson, leading the investigation on behalf of the Child Sexual Exploitation and Abusive Image Unit of the West Yorkshire Police, considered that Woman X bore a striking resemblance to MD, and that Girl Y a remarkable likeness to GD. DS Hudson in liaison with his colleagues in the imaging unit commissioned the creation of a superimposition montage which allowed the picture of Girl Y to be overlaid on a picture of GD; this appeared to confirm their lay view.

 

  • Some ten months later, on 25 February 2015, DS Hudson shared the information which the police had gathered with representatives of children’s services at Wakefield MDC. The social worker who attended the relevant strategy meeting noted that DS Hudson declared himself to be “90%” sure that the woman in the video was MD; he was later to say (same source) that he considered that the child in the still image was GD “to a 99% probability”. This evidence (involving the percentages) infiltrated other discussions, and were attributed to DS Hudson. DS Hudson was later to deny having used percentages as recorded, but having heard from SW1 and DS Hudson, I reject his denial; I am satisfied that this statement, and the percentages referred to, reflected his actual view of the probability of MD and GD being captured in the images, and that he expressed himself in this way. Later that afternoon, DS Hudson and SW1 (social worker) attended the family home; DS Hudson arrested MD and FD on suspicion of assaulting a girl under the age of 13, and of possession of multiple indecent images of children. The West Yorkshire Police exercised powers of protection and the children, GD and BD, were placed in foster care; on the following day, the Local Authority commenced care proceedings under Part IV of the Children Act 1989.
  • The children were to remain in foster care until 13 December 2015.

 

Skipping ahead, at the final hearing, the police officer gave evidence over a 3 day period, and in the course of this evidence, counsel instructed by the Local Authority decided that he had to withdraw from the case.

 

  • On 20 November 2015 DS Hudson concluded his evidence, which had been taken over three days, having been questioned by all of the advocates about his pivotal role in the investigation and his account of who knew what and when. At the conclusion of the second day, Mr. Shiels had invited the judge to allow the officer to be treated as a hostile witness; it was increasingly apparent that DS Hudson directly contradicted Mr. Shiels’ personal recollection of events, and was casting blame for the lack of disclosure on others. When the hearing resumed on 23 November, Mr. Shiels indicated his intention to withdraw from the case. He explained his position to HHJ Anderson thus:

 

“I have reflected upon my position as advocate for the Local Authority and taken into account any potential conflict between my duty to present the Local Authority’s case as it ought to be presented and my interesting reflections upon my own professional standing. The way in which DS Hudson gave his evidence created a conflict between those two matters, and it also raises implications which I have thought through and taken consultation on with a senior colleague as of the further presentation of the Local Authority’s case and, in particular, the social worker’s evidence… The Local Authority must be represented by someone who does not face that particular conflict.”

Substitute counsel was instructed and two days later, the Local Authority indicated to the court its intention to undertake a “wholesale amendment” of its threshold Schedule of Facts. On the same day it confirmed its plan for the children to be returned home to the mother’s care, a position endorsed by the Children’s Guardian.

The children returned home on 13 December 2015.

 

 

There then followed this Human Rights Act claim, which is what the judgment chiefly deals with. The case really turns on the point at which the suspicion that the woman in the video was the mother and the victim was the child became not a suspicion that had to be properly investigated, but a ‘hunch’ which the evidence was contradicting, and whether the evidence that undermined that claim was properly shared with the Court and the parents.  The importance of that, of course, is that a case where father was downloading indecent material is a case that could be managed by the mother separating from him, whereas an addition that mother had been abusing one of the children would rule that out as an option. It was an extremely grave and important allegation.

 

Here are the Court findings in relation to that (I’ll come back to some of the important, and shocking detail)

 

Findings: Local Authority:

 

  • In my judgment, this Local Authority has rightly conceded that it unlawfully interfered with the Article 6 and Article 8 rights of the Claimants in a number of material respects. The Local Authority was not swift in acknowledging its faults; the Defence filed in February 2016 makes minimal concessions. However, I have noted and recorded the concessions which are now made, and insofar as is necessary deal with the particulars in the paragraphs which follow.
  • Suspension of contact: For a period of time, all contact between the children and their parents was suspended, and when restored, it was heavily circumscribed. The temporary but total severance of the relationship between the children and their parents was a serious step at the point at which the children were removed from their parents’ care; while there may have been sound reasons for this initially, while the police investigation was at an early stage, the Local Authority is right to concede that it should have done more to test the necessity of this suspension continuing for more than a day or so. The CA 1989 imposes duties on them which were not observed (see section 34(1) and section 22(4) CA 1989; there was limited facility to the authority to refuse contact and only for a time-limited period (7 days) where “they [were] satisfied that it is necessary to do so in order to safeguard or promote the child’s welfare” (section 34(6))). The police were in my judgment slow-paced in deciding whether to conduct ABE interviews of the children, before deciding not to do so. The Local Authority should have been proactive in testing the police’s decision-making at an earlier stage.
  • Disclosure: There were, regrettably, repeated failures on behalf of both public authorities to effect disclosure of relevant documents and information in this case. It is well known that it is the duty of the parties and their legal advisers to give full and frank disclosure of all relevant material unless one of the well-established principles of privilege or public interest immunity apply. It is incumbent on a Local Authority to present its case properly, fairly and with due regard to the principles of Article 6 of the ECHR.
  • My view is that the failures of disclosure in this case largely derive from the conduct of the West Yorkshire Police (see below). However, I am satisfied that the Local Authority solicitor, Ms McMullan failed:

 

i) To disclose to the respondent parents and Guardian the information which she learned in conference on 21 August 2015 namely that the short video was (or was likely to be) of American origin; although I am satisfied that this information was conveyed to the Local Authority team by DS Hudson only in passing, this was nonetheless crucial evidence and its existence had registered sufficiently with Ms McMullan for her to write to Mr. Shiels many weeks later, in November, to ask his view about it;

ii) To respond to the mother’s solicitors’ request for “any other relevant information about the police evidence that would assist me in putting my client’s case” (9 September 2016), with the information that the video had a US provenance (even if she had expressed this only as a possibility);

iii) To ensure that the likely American provenance of the short video was referred to in the Local Authority Opening Note; it is clear that Ms McMullan was conscious of this fact as she had e-mailed Mr. Shiels about it only shortly (10 November) before the hearing;

iv) To respond more fully and generally to the questions (concerning police disclosure) from the mother’s solicitor in September 2015;

v) To disclose the superimposition montage to the respondent parents and children on or shortly after 17 September. This omission is particularly serious given that:

a) There was a court hearing on the day after it had been shown (18 September) and it was not mentioned;

b) Ms McMullan had not responded to the mother’s solicitors’ letter requesting disclosure made only days earlier.

Opportunity was thereby lost for the parties to assess this evidence, and to seek Ms Pestell’s view of the montage. The mother’s case is that the failure to disclose this evidence was “secretive, tactical, and unfair”; I do not accept those particular criticisms. I find that the failure to disclose this information was symptomatic of a lack of coordinated, structured, organised approach to the preparation of the case. It is rightly conceded that this contributed to the breaches of the Claimants’ Article 6 rights (Annex A[1](d) below).

 

  • I find that the failure to make prompt and/or complete disclosure materially compromised the ability of the legal teams for the Claimants to prepare their cases. It seems to me that if a more conscientious approach had been taken and had disclosure been made in a timely and appropriate way, the Claimants’ solicitors would have been able to press for the Local Authority to re-evaluate its case, potentially by restoring the matter before the court for early determination of the appropriateness of continued interim care orders.
  • Evidence: The Local Authority was under a duty to place clear and impartial/balanced evidence before the Court. Two witness statements fell under scrutiny in this hearing: those of DS Hudson and SW1. The preparation of the witness statement of DS Hudson was wholly unbecoming of a serious investigation such as this, fell well below ordinary standards of professionalism in its compilation, and the end result was a document which was neither fair nor balanced. There is no or no material evidence that either Ms McMullan or Mr Shiels really addressed themselves to that issue. The Local Authority cannot escape the fact that the written request of DS Hudson to provide only evidence in his statement which was incriminating of the mother caused his contribution to be distorted and partial. I understand and accept that Mr Shiels had addressed his mind only to reminding Ms McMullan of certain matters which ought to be included in the statement, and that his e-mail was

 

“… intended simply to be a helpful reminder to my instructing solicitor that DS Hudson should include those particular matters when preparing his statement. I was not advising or purporting to advise on the overall content of the statement and I did not advise that anything should be omitted.”

But, as I say, the predictable consequence was that the statement was neither comprehensive nor was it fair to the mother (and children). This materially contributed to the biased picture created by the public authorities, which reinforced and aggravated their other failings. It does not require me to spell out to these experienced lawyers what the statement of DS Hudson should have looked like. Charles J in Re R (Care: Disclosure: Nature of Proceedings) [2002] 1 FLR 755 at p.772 commented on the importance of:

“… a proper discussion with the relevant witnesses to ensure, so far as possible, that their statements contain a full and proper account of the relevant matters, which include the central matters seen or heard by that witness, the sources of hearsay being recorded by that witness, and the relevant background to and the circumstances in which the matters set out took place; and … a proper consideration of what further information or material should be obtained.”

 

 

With this in mind, the Judge had to consider whether there was bad faith on the part of the Local Authority – in layman’s terms, had they been careless or had they been actively trying to ‘fit up’ this mother?

 

 

  • Generally: The Claimants do not specifically assert that the Local Authority set out to mislead the court, or create a false case against the parents. They pleaded a case based on bias; they assert that the Local Authority was partisan and conducted itself in a way which was incompatible with its role in dispassionately analysing evidence and adopting a child-focused stance in line with the evidence. They have maintained that the Local Authority legal team, Ms McMullan and Mr. Shiels, lost objectivity in their professional conduct in this case, and as a consequence focused on only those aspects of the case which were adverse to, or implicated, the parents, and not those parts which might serve to exonerate them.
  • While I accept that the Local Authority representatives failed dispassionately to analyse the evidence, and tended to focus on those parts which were adverse to the mother, I don’t accept entirely the other criticisms. It seems to me that other factors were in play:

 

i) The Local Authority could only work with the information which they themselves received from the police; this disclosure was made piecemeal, late, and often in an incomplete form; this hampered the proper evaluation and presentation of the case;

ii) The Local Authority solicitor, Ms McMullan failed to take a co-ordinating role in relation to the evidence and/or the structure of the case; I sensed that she reacted to the requirements of the timetable and the demands of her client and never proactively managed the case; she ended up as a fire-fighter and appeared to rely heavily on Mr. Shiels for all decision-making. I do not believe that her conduct fell below an ordinary professional standard (and she did not lose ‘objectivity’ as was alleged), she simply did not rise to the demands of running a complex case, did not challenge decisions, and did not develop a sense of what the case was and where it was going. Had she undertaken her role with more attention to the detail of the case, I am sure that the US provenance of the video would have received greater prominence in her thinking. Her “oversight” in failing to disclose the montage may have been the result of a demanding caseload.

iii) For a complex case, it was regrettable that the key social worker (SW1) was so inexperienced; indeed, she had not dealt with a sexual abuse case before. She gave the appearance (in her evidence to me, which chimed with the transcript of her evidence before HHJ Anderson) of someone who was struggling with the case. I felt that she was probably rather impressionable, and could possibly be (or at least feel) pressurised by her seniors or others; she told HHJ Anderson that she was advised by her manager and the legal department that the Local Authority was going to take a particular line in the case, albeit that it did not accord with her view (see the quote from the e-mail at [33] above). She described herself in that earlier hearing as “just part …I am the social worker part of the process”, and disputed that she had instructed the department “to seek findings”. She said that she had not been party to any conversation about the obtaining of expert evidence to counter the LGC Forensics paper, although would have expected to be so. The Guardian picked up this dynamic; he felt that SW1 had been “instructed” by her legal team to take the line she did in relation to the case, perhaps against her better judgment. I concur with the Guardian’s analysis.

 

  • I do not believe that there was any evidence of professional misconduct or negligence on the part of the Local Authority lawyer or social worker; nor do I consider that there was a loss of objectivity, as alleged. Regrettably I sensed that the Local Authority’s case management was rudderless, lacking in supervision, hampered by a lack of clear information, overly influenced by DS Hudson’s misguided perception of the case, at times incoherent, and (as I indicated above: [91](ii)) almost always reactive rather than proactive.

 

 

 

I said that I would come back to some of the detail, and it is important.

 

Bear in mind that the care proceedings began on 27th February 2015 and the investigation was ongoing.  A key part of that would obviously be the forensic analysis of the video – since whether or not the perpetrator and victim looked like mother and child wasn’t sufficient, there needed to be closer analysis.

On 31 March 2015 Ms Jacqueline Pestell of LGC Forensics contacted DS Hudson, and gave him an oral report of the results of the facial mapping exercise; it is a little unclear precisely what was said. Ms Pestell maintains that she advised DS Hudson over the phone that MD could be “eliminated” as the woman in the video; this indeed was the account given by DS Hudson in his first statement in these proceedings. LGC’s internal note refers to the differences observed in the images, making them “unreconcilable” (sic). DS Hudson was advised in the same call that MD’s sister was a better match. In a later written statement in these proceedings DS Hudson doubted that the word ‘eliminated’ had in fact been used but confirmed that he was advised that the sister was a better suspect, and that in the circumstances there was little if any prospect of pursuing charges against MD. It is in fact formally conceded now that the police treated MD as being ‘eliminated’ from this the time (see Defence filed on behalf of West Yorkshire Police, and see Annex B [2] below)). Interestingly, in oral evidence, DS Hudson repeatedly used the word ‘eliminated’ to describe the effect of the information he had been given at this stage, and on the balance of probabilities I am satisfied that this is indeed what he was told by LGC.

 

Obviously if the Forensic Analysis ‘eliminated’ the mother as the perpetrator in the video, that was a vital piece of information.  (As the Judge says later, these cases are trial by Judge, not trial by expert, but it was a vital piece of information, even if the LA case was ‘the forensic analysis is wrong and we want the Court to test that evidence’)

The police had not properly communicated that to the LA.

 

  • On 7 May 2015, at the next court hearing listed before Moylan J, the Local Authority informed the court (per position statement) that facial mapping analysis “may have led” the police to believe that the images on the short video were not of the mother. West Yorkshire Police concede that by this time, the Local Authority were still not aware that the mother had been ‘eliminated’ on expert analysis, and nor was Moylan J when he made his further order for disclosure.

 

 

The case moved further forward, when the police obtained evidence to show that the video was in fact created in America, and was thus not a video of this child, nor the perpetrator anyone in this family.  Important to keep in mind that it was still a video of child abuse, which had been on father’s computer, so the concerns about father remained very live ones. But realistically, the risk of the mother as a perpetrator had disappeared, but the allegations had not been dropped.

 

  • By 4 June 2015, LGC Forensics had also excluded MD’s sister as Woman X. West Yorkshire Police informed the Local Authority of this. However, when the social worker (SW1) spoke with an officer of the West Yorkshire Police on 8 June, she was advised that the police were still in some doubt about the evidence and could not confirm that no criminal charges would arise as a result of these images; on the following day, DS Hudson wrote to the social worker in these terms: “the results back from the Forensic Company has not been able to confirm the identity of [MD] or [her sister]” as Woman X (this phrase did not in my view faithfully reflect what DS Hudson had been told), adding that the mapping work in relation to GD/Girl Y had not yet concluded. MD recalls that at this point she was simply advised that the facial mapping exercise had proved “inconclusive”, not that she had been eliminated.
  • On 10 June, there was a major development in the police investigation. DFI, one of the experts in the Digital Forensic Department working on an unrelated investigation, located a video recording of approximately eight minutes’ duration, of which the short video of Woman X (which had been the focus of enquiry in this investigation, identified in [12](i) above) was clearly an extract; the longer (eight minute) video showed clearly the identities of those participating in the recorded activity, and revealed beyond question that MD was not Woman X. It was further clear (from incidental detail in the footage) that the video had been recorded in the United States of America, not in West Yorkshire. DFI e-mailed DS Hudson asking him to call, as he has “information about [Woman X]”. DS Hudson was (it is agreed) on leave on that day and it appears that he did not in fact make the call on that day; it is not clear when DS Hudson returned the telephone call to DFI, but I am satisfied (on DS Hudson’s own evidence) that it was not long after DS Hudson’s return from leave on 22 June. In that call, I find that DFI gave DS Hudson sufficient detail about the longer video for him to know that MD was definitively not Woman X. From that point on, he told me that it was “cast iron” that MD was exonerated and he was then fixed with this knowledge.

 

 

This then becomes very difficult reading. I’m squirming even as I cut and paste this in.  This is exactly the sort of stuff that staunch critics of Local Authorities believe happens all the time, and it is genuinely sickening to see it play out for real.  It is awful to read this.   The underlining here is the Judge’s.  I would underline more, for emphasis, but I don’t want to lose those portions.  It is just awful, I’m afraid.

 

 

  • At a further court hearing on the following day (11 June 2015), counsel for the local authority, Mr Ian Shiels, reports (and I accept) that when the police representative was asked whether the facial mapping report (not yet disclosed) was required for interviews of the parents, the reply was “probably yes”; this is, as it now transpires, a surprising response given what is now known of the conclusions of the report. On 15 June 2015 the West Yorkshire Police received the written report from LGC Forensics which confirmed beyond question that MD was not Woman X. The report further confirmed that GD was not Girl Y, the child in the still image ([12](ii) above).
  • On 24 June 2015, on his return from leave, DS Hudson e-mailed the Local Authority social worker SW1 confirming that GD had been “eliminated” as Girl Y (the girl captured on the still image); DS Hudson confirmed that he told the social worker that the only active line of enquiry was in relation to the other images captured on the family computer. The contents of the LGC report were not shared with the mother for more than two more weeks (9 July) – see [27] below). On the following day (25 June), DS Hudson sent this important e-mail to the Local Authority solicitor, Ms McMullan:

 

“At this time there is no plan to interview [GD]. Even though the facial mapping has not identified [GD] I would still like to put the image [i.e. the still image] to the parents in interview should one of them id [identify] [GD] then she will need to be interviewed to see if she can recall the incident. I do not want this information giving (sic.) to the parents as stated I am looking to bring them in early next week.” (emphasis by underlining added).

On receipt of this e-mail, Ms McMullan, the Local Authority Solicitor, e-mailed the social work team manager as follows:

“…I’m not confident in what [DS Hudson] is saying is entirely accurate. It may be that they want to trick the parents in interview? I really don’t want to speculate …” (emphasis by underlining added).

 

  • On 9 July, the parents were interviewed by the West Yorkshire Police for the second time; both denied possession of the indecent images, and the mother denied recently destroying the computer hard-drive (per the Kodak photograph). As planned, the still image of Girl Y was put to the parents, who each in turn disputed that it was GD. Following the interview, the mother (MD) was eliminated from the investigation (a point which was confirmed in an e-mail of the same date to the social workers: “[MD] has now been eliminated from the investigation”), whereas the father (FD) was charged with six sample counts of making indecent images of children. On the same day, the West Yorkshire Police provided the 40-page and detailed LGC Forensic report to all parties; this confirmed that there was “no support” for the contention that MD was Woman X, nor that GD was Girl Y. The West Yorkshire Police further disclosed the image of MD allegedly destroying the computer hard drive. At court on the following day, Andrew Garthwaite, solicitor for the West Yorkshire Police recounted that “the Police position that the female in the video was not [MD] was clearly stated…”; he says that he spoke with Ian Shiels at court, who in turn indicated his wish to view the short video. This arose because Mr. Shiels detected some lack of confidence in the expert report among those who had commissioned it; Mr Garthwaite acknowledges that at that time he may well have said to Mr Shiels that he recognised the similarities between Woman X and MD and “couldn’t preclude the possibility that another facial mapping exercise might generate different findings”. Ms McMullan told me that Mr Shiels had reported to her an air of scepticism among the advocates about the reliability of the facial mapping report. In that regard, Mr Shiels followed up the discussions at court with an e-mail to Ms McMullan the following day in these terms:

 

“When I read the facial mapping experts report yesterday my thoughts were that this scuppered any case that the mother had been abusing a child or that [GD] had been abused… But I would like to think about it further…”

Mr. Shiels went on to describe the mother’s account of the dating of the Kodak photograph (i.e. that it was an old photo) as “plainly rubbish” (a view derived I believe from the fact that it had been assumed that all of the images on the computers had been captured when the computers were seized in 2014, and this one had only appeared since that time). His e-mail further alluded to the difference in standard of proof between the criminal and civil processes, and the need to look at the primary evidence and not be “led entirely by expert opinion, which need not necessarily be right”. He acknowledged that the conclusion of the LGC Forensics report was “a problem” but not “necessarily an insuperable one”.

 

  • On 10 July, at court, SW1 recorded that the parents told her that they were separating “out of necessity, not because they want to”, a view which they confirmed on 13 July at a social work home visit. This is relevant to the issue of continuing potential risk posed by the mother to the children, irrespective of her role as possible perpetrator.
  • On or about 14 July, Ms McMullan and Mr Garthwaite spoke by telephone. They plainly discussed the content of LGC Forensics facial mapping report, and the Local Authority’s willingness to consider a second expert opinion; the cost of obtaining such a report (c.£40k) was alluded to. Following this call, Mr Garthwaite sent an e-mail to DS Hudson (21 July) which included the following:

 

“I had a request from the local authority solicitor Annie McMullan last week as to whether or not you would be prepared for the local authority barrister, Ian Shiels, to be allowed to watch the indecent video(s) involving alleged mother and alleged [GD]? The reason for the request is that the local authority are keen to do all they can to secure the children in this case and are prepared to spend £40k+ in order to have the video analysed themselves to try and pin a case against the parents“. (emphasis by underlining added)

Mr Garthwaite apologised at this hearing for his choice of language in this e-mail; he could not be sure that Ms McMullan had not used the phrase ‘pin a case’, and in fairness, she could not rule out the possibility either, although thought it unlikely. Mr Garthwaite wished to emphasise that the language was not designed to give any indication that the Local Authority were in any way engaged in any impropriety by manufacturing a case against the parents.

 

  • On 23 July, DS Hudson replied to Mr. Garthwaite informing him that he was intending to view the second (longer) video which had been located by DFI, the Digital Forensic Investigator, and would be doing so “this morning” (records show that DFI had made a copy of it on 22 July in preparation). DS Hudson told me in evidence that he did not in fact go to the forensics laboratory to view it on that day on account of “operational commitments”, but only viewed the longer video a month later on 24 August. DS Hudson told the court in November 2015 that he believed he had viewed the longer video in or around June or soon after 23 July 2015. The evidence of DFI was that DS Hudson viewed the longer video “around” June/July, but at the latest “the first part of August”. Later, within the evidence filed in these proceedings, DFI went some way to confirming DS Hudson’s account that he did not view the longer video until 24 August (linking it with recalling having e-mailed him in relation to a ‘personal matter’), though acknowledged that he only “vaguely remembers” the events. It is not material to establish precisely when DS Hudson viewed the longer video; I cannot find on the evidence that he did in fact view it before 24 August. As I have said earlier (see [24] above), he was fixed with the knowledge of the mother’s certain innocence by the end of June 2015. On my reading of the e-mail traffic, this is the only e-mail passing between DS Hudson and Mr Garthwaite about the second (longer) video (see also [99] below). Mr. Garthwaite reports that he did not appreciate the significance of the second (longer) video at this time.
  • On the same day (23 July), Mr Shiels sent Ms McMullan, his instructing solicitor, a draft schedule of the findings which he proposed that the Local Authority should seek within the care proceedings. Specifically, at paragraph 7 and 8, the schedule reads as follows:

 

“[GD] is the child in the indecent still image recovered from the [family] computer tower. She has therefore been sexually abused by being involved in the creation of images of child abuse.

[MD] is the woman shown in the video recovered from the [family] computer tower sexually abusing a female child … it is likely that the person taking the video is [FD] and the child is [GD].”

In the e-mail, Mr. Shiels records himself as “unconvinced” by the analysis of the facial mapping expert: “to me, it just looks like mother and [GD]. I think the original instinct of the police that they were 90% sure is correct.” At the foot of the e-mail attaching the schedule, Mr Shiels states: “If you and [SW1] are okay with it, it can be served (which we are supposed to do tomorrow)”.

 

  • On 29 July, Ms McMullan chased a response from Mr. Garthwaite by e-mail persisting in her request for disclosure; on 17 August Mr. Shiels chased again (also by e-mail) for the police’s disclosure. This disclosure was said to have been delivered by the police to the Local Authority on or about 20 August.
  • On 31 July, SW1 met with her team manager, and explained to her that she would be concerned about giving evidence in the case as she did not believe that MD was Woman X nor that GD was Girl Y; the expert evidence had, she thought, made this “abundantly clear”. To recap, the Local Authority knew of the conclusions of the LGC Forensics report by this stage, but not of the existence (let alone the significance) of the longer video. The note of the manager reflects inaccurately that “The woman [on the video] is believed to be mum (90% certainty following facial recognition)”; it is not clear to me whether that information had been incorrectly understood by the social work team or whether the note of the conversation is inaccurate. On that day the team manager wrote to the solicitor as follows:

 

“I am just in supervision with [SW1], having an update regarding this case. On consulting the attached schedule, we are not in agreement with the sections numbered 6 & 7. [SW1] is certain that the child in the images concerned is NOT [GD]. Furthermore, she is doubtful that the adult female is mother. Consequently, it would not be appropriate to give evidence to state otherwise… I am aware that the police are not intending to conduct an ABE interview of [GD], so do we need to make a decision at this point as to whether we pursue our own by an ABE trained social worker?” (emphasis in capitals in the original: emphasis by underlining added. Note also that reference to “6 & 7” is an erroneous reference to paragraphs 7 and 8 of the schedule: see above).

Later that day, Ms McMullan telephoned the team manager to seek to reassure her that the Local Authority had proper grounds to proceed on the basis of the video and still image, given that the standard of proof was different in the family court and the criminal court. It appears that a conference was then arranged with counsel in order to discuss the social worker’s concerns. This took place on 13 August. Strangely, none of the notes of the conference record any conversation about the social worker’s concerns. Mr Shiels told me that he recalled no specific conversation about these concerns.

 

 

That schedule of findings is worth going back to :-

 

  • On the same day (23 July), Mr Shiels sent Ms McMullan, his instructing solicitor, a draft schedule of the findings which he proposed that the Local Authority should seek within the care proceedings. Specifically, at paragraph 7 and 8, the schedule reads as follows:

“[GD] is the child in the indecent still image recovered from the [family] computer tower. She has therefore been sexually abused by being involved in the creation of images of child abuse.

[MD] is the woman shown in the video recovered from the [family] computer tower sexually abusing a female child … it is likely that the person taking the video is [FD] and the child is [GD].”

In the e-mail, Mr. Shiels records himself as “unconvinced” by the analysis of the facial mapping expert: “to me, it just looks like mother and [GD]. I think the original instinct of the police that they were 90% sure is correct.” At the foot of the e-mail attaching the schedule, Mr Shiels states: “If you and [SW1] are okay with it, it can be served (which we are supposed to do tomorrow)”.

 

Clearly, if there had been full and transparent sharing of information, the fact that the forensic analysis had indicated that neither of the persons in the video were members of the family and that the footage emerged from America  (there was an 8 minute long video from America, of which this was a 30 second snippet, and the longer video obviously gave more material to work from) meant that the LA could not realistically pursue those findings. The question is, did they know that?

 

 

  • On 21 August, two important events occurred in the history of this case.

 

i) First, at a hearing before HHJ Lynch during the morning the West Yorkshire Police were ordered (for a further time) to disclose information to the parties about the Kodak photograph, including any information about the date of its creation, storage, and assessment. This direction had been anticipated by Mr. Shiels who earlier in the morning had e-mailed DS Hudson requesting information about the Kodak photograph and the date of the folders in which it was stored;

ii) Secondly, in the early afternoon, a conference took place at Mr Shiels’ Chambers; those in attendance were Mr Shiels, Ms McMullan, DS Hudson, and SW1, although SW1 was late in arriving. I deal with the conference in some detail (below).

There is some dispute about precisely what was said at this conference. DS Hudson’s evidence is that he told those present at the meeting that a second (longer) video had been found in a separate investigation and that its country of origin was America; he accepted in evidence before me that he may not have spelled out as clearly as he should that this video ruled MD out as a perpetrator of abuse beyond question. When questioned about this at the hearing before HHJ Anderson in November he accepted that he did not make this clear. On nobody’s account of the meeting was the American origin of the video “discussed” as DS Hudson (misleadingly in my view) told HHJ Anderson during his earlier evidence on no fewer than three occasions. The Local Authority maintains (and the contemporaneous notes of the conference support this) that DS Hudson had indicated in the meeting that there was a possibility that the (shorter) video may have originated from America (“origin might be US”); he was asked to clarify this and he agreed to make further enquiries of DFI.

 

  • During the viewing of the short video at the conference, DS Hudson (and this much is agreed by Ms McMullan and Mr. Shiels), pointed out that Woman X was wearing an unusual blue watch, and informed them that this had not been found during the searches of the family home. Self-evidently it would not have been found in MD’s home, as MD was not Woman X, as DS Hudson well knew. The officer also pointed out that Woman X was wearing a ring on the same finger as MD – again, ostensibly establishing a link between the two, which he knew was merely coincidental.
  • At the conference, DS Hudson apparently described the superimposition process which had been conducted in or about February 2015, and confirmed that the montage (of Girl Y and GD) was still in the possession of the police. DS Hudson’s evidence to me was that by the end of the conference he believed that the Local Authority was proposing:

 

i) to allege within the care proceedings that GD was Girl Y in the still image (and had therefore been directly involved in the abuse), but that

ii) the authority had no intention of seeking to argue that MD was Woman X.

As it happens, he gave different evidence before HHJ Anderson in November 2015, indicating that by the time he prepared his witness statement, he knew/believed that the Local Authority was pursuing a finding that MD was Woman X. He thought that the Local Authority was proposing to argue that MD had destroyed the hard drive and therefore evidence of indecent images. The account he gave before HHJ Anderson was, in my judgment, more plausible.

 

  • SW1 recalls no conversation about, or mention of, America during the conference, which, if she is right, suggests that any such mention may well have occurred before she arrived (which was later than the others), and indeed I so find. Ms McMullan now indicates that she regrets not writing to Mr Garthwaite after the conference to clarify the “throwaway remark” about the origin of the video, and specifically the reference to “America”. Significantly, she is clear that DS Hudson never mentioned then, or indeed at any time up to 18 November at court at the start of the final hearing, the existence of a second (longer) video. She believed that DS Hudson would obtain further information from DFI about the relevance of America, and revert to her. Ms McMullan maintains that had she known, or been advised, that the second video existed, that it originated in America and that MD was certainly not the woman in the short video: (a) the local authority would not have asked to view, let alone actually view, the short video, and (b) the course of the case would have been radically altered.
  • Mr Shiels shares Ms McMullan’s recollection that DS Hudson did not mention the existence of any other or longer video in the conference, and that he only mentioned, as a possibility, that the video which they had watched may have originated in America, though (says Mr. Shiels) DS Hudson did not appear clear about this and laid no great emphasis upon it. Mr Shiels believes that it would have been perfectly plain to DS Hudson from the discussion at the conference that the Local Authority was going to maintain its case (set out in the schedule – see [31] above) that MD was Woman X; accordingly, Mr. Shiels felt that the video was pivotal in being able to prove that fact, notwithstanding the expert report from LGC Forensics. Mr Shiels did not understand from DS Hudson’s comments that the video had actually been filmed in America (as in fact is proven to be the case) but wondered whether the reference to America was to a shared computer file with an American partner. He recalls the reference to the watch, and to DS Hudson confirming that the police search of the family home had not produced the item. At his request, all existing records relating to police searches of the family’s home was sought as disclosure, and were indeed disclosed. At the conclusion of the conference, Mr Shiels asked DS Hudson if he could prepare a witness statement for the CA 1989 proceedings. Mr. Shiels describes the “focus” of the meeting as:

 

“… assessing the strength of the local authority’s case and therefore the focus was on obtaining from DS Hudson information which would or could support and strengthen that case.”.

I underline the passage in the quote above to highlight that it appears that the “focus” was not on collating relevant evidence which went either way.

 

  • Having heard the various accounts of the conference on 21 August, I find that at the conference:

 

i) DS Hudson did not explicitly refer to the existence of a second (longer) video; while it is possible that he and the Local Authority were speaking at cross-purposes about ‘the video’, in fact I find this omission to be deliberate;

ii) DS Hudson did not make clear to the Local Authority representatives as he should have done that the police investigation had established beyond question that MD was not Woman X;

iii) DS Hudson’s observation that the “the video” had an American origin was made only in passing; it was not “discussed” as he told HHJ Anderson. The officer did not – as he should have done, in my view given the importance of the issue – make clear to the Local Authority representatives that the video originated in the USA, and that this therefore contributed to the view that the mother could be ruled out as the perpetrator of the video-recorded abuse;

iv) By stating that the police had not found the unusual watch worn by Woman X in the mother’s home, and by pointing out Woman X wearing the ring in a similar fashion to MD, DS Hudson caused or encouraged the Local Authority to believe that the police believed or suspected that MD was indeed Woman X, or that there was a case to make that MD was Woman X, when in fact (as we now know) they knew that she was not.

 

 

The Judge does not make any criticism of the LA inviting the police officer, who was clearly a witness of fact, to a conference with counsel.  I suppose there was so much else to criticise that this got missed.  It’s not something I would imagine doing.   You can see from the judicial findings that the Judge found that DS Hudson caused or encouraged the LA to believe that the police BELIEVED that the woman in the video was the mother when in fact they KNEW she was not.

 

The lawyers in the care proceedings asked to see the longer video, and this produced a flurry of email correspondence between DS Hudson and the force solicitor, Mr Garthwaite.

 

  • On 15 September, the solicitor for the mother notified Mr. Garthwaite by e-mail that it was her intention to apply to the court for permission to instruct an expert to date the Kodak photograph; she also indicated her intention to ask the court for permission to view the short video.
  • On 17 September, an e-mail ‘conversation’ took place between Mr Garthwaite, DS Hudson and DFI. Mr Garthwaite had passed on the request by the mother’s legal team to view the short video; DFI raised a concern about this to his colleagues, saying:

 

“We’d established from another recent case of mine that it’s neither [MD] nor [GD] in the video – albeit that the female in the video does have a resemblance to [MD]. We’d technically be showing them an indecent video, of which all parties would need to be aware of and its content…”

DS Hudson asked for legal advice about the position from Mr Garthwaite who told me at this hearing that he did not appreciate until 19 November the relevance of the second (longer) video. On the basis that an order would be sought by the parties for permission to view the video, and that disclaimers would be sought, arrangements were made for the mother and her legal team to view the short video. The mother and her legal team viewed the video on 12 October. There later followed a request by the Children’s Guardian to view the video; this provoked an e-mail from DS Hudson to Mr Garthwaite:

“I’m really not happy with this, we have shown the video to [MD] and her counsel… as discussed and arranged. Now we are being asked to show this video to [GD]’s solicitor and her Guardian; we are being asked to show a Level B Child Abuse video to her Guardian. Why? What protection is in place should her Guardian react in a negative way to this abuse video? It was agreed to show the video to [MD] and her counsel on the basis that counsel has dealt with these issues in the past and [MD] had seen the video in interview. Please confirm that the police and officers involved will have no repercussions in this matter.”

Mr Garthwaite sought to offer reassurance to DS Hudson.

 

Of course, what this means is that a set of lawyers ended up watching a video which must have been graphic and dreadful to watch, when in reality, none of them needed to see it at all, because the mother and the child had both been eliminated by police enquiries as being the people in the video.  The lawyers were only watching it because the allegation was that this was the child being abused by the mother.  If there had been honesty that the video had no connection to the mother and child OTHER than it being one of 5,000 indecent matters found on father’s computer, none of them would have had to do that.    {There’s a dreadful discussion in the next paragraph where someone puts their finger on it – the father had probably picked this particular clip BECAUSE the woman in it resembled the mother, his partner.  I’m sorry, that is just truly awful}

 

We’ve had cases reported before about things being added to social work statements, and that happened here too  (I’m not talking about cleaning up typos or polishing, or suggesting a better way to word something, but insertion of things that the social worker didn’t actually agree with. )

 

 

  • On 8 October, SW1 filed her final parenting assessment report on MD with the court. It is a lengthy document extending to over 50 pages. I learned a little of the evolution of the report at the hearing. It passed through at least two editorial hands (the team manager and the Local Authority lawyer) before being filed. Ms McMullan was the final editor and included in the report a number of new sentences. She said that she asked SW1 to check the statement before signing it, having earlier “knocked [it] around a bit”; SW1 told me that she did not check it carefully and only after its filing did she read it thoroughly, and then realised that words had been added with which she was not comfortable, importing views which she did not hold.

 

 

 

The fact that the LA findings sought against mother  – that she had abused the child in that video, were completely unsustainable,  and had not actually been sustainable for about six months by the time of the final hearing, yet this only actually emerged on day one of the final hearing.

 

 

  • The final hearing began before HHJ Anderson on 17 November; no evidence was called on the first day. Following discussions between the advocates, Mr. Shiels drafted questions for LGC Forensics to answer about the superimposition montage, namely (a) whether it had been seen before and (b) whether it caused the expert to alter her analysis. As I discuss later, I find that these questions could and indeed should have been asked much earlier. On 18 November, DS Hudson and DFI attended at court to give evidence. It appears that in the pre-hearing conference outside court, DFI informed Mr Shiels of information he had known since 10 June 2015, namely that the short video had originated in America, and was an extract of a longer video. Mr. Shiels’ account from his witness statement repays rehearsing in full:

 

“I was not told that there was any other version of the video, or a “longer” video … I was very surprised to be told that the origin was clearly in America, rather than merely a possibility. I then asked if they were saying that the woman in the video was in fact probably not [MD]. [DFI] said this was so. I cannot recall if DS Hudson contributed anything to this. If he did, he did not say much. He did not dissent from what [DFI] told me. I immediately communicated this information to the other advocates and then to the court, withdrawing the Local Authority’s case that the mother was the woman in the video…. At no time prior to the 18 November had I been told of the longer video, the origin clearly being in America, and the certainty that the woman was not the mother. If I had known this at an earlier stage, I would immediately have taken the same action that I took at court and withdrawn that allegation against the mother.”

 

  • Ms McMullan’s evidence is that she had a conversation with DS Hudson; she says that she told the officer that she did not know that the video had originated in America, to which DS Hudson replied that he thought that Mr Garthwaite had told them.

 

 

 

Just when you think that things can’t get worse, they do.  It emerges that at the ABE interview of the child (which was conducted by an inexperienced social worker), the child was shown a pixelated photograph of the child in the video  (who the police KNEW was not her)

 

 

  • ABE interview: ABE interviews should always be conducted with reference to the March 2011 Guidance: “Achieving Best Evidence in Criminal Proceedings: Guidance on interviewing victims and witnesses, and guidance on using special measures“. Although this guidance is advisory, and is not a legally enforceable code of conduct, as the Guide makes clear “practitioners should bear in mind that significant departures from the good practice advocated in it may have to be justified in the courts” (see §1.1). This is not the place for a detailed examination of the guidance, but it is essential reading for any professional conducting such an interview, and for those engaged in the preparation of a case which depends upon interview. It was not followed either explicitly in the work undertaken by SW1 and her colleague on 17 September 2015; the Local Authority properly concede the consequent breaches of the Claimants’ Article 6 and Article 8 rights in this regard (see Annex A[1](e)/[2](c)).
  • In this case, I question why an interview in the ABE format was taking place at all in September 2015, some seven months after the children were received into care; SW1 believed that GD “needed to tell her story”, but what story was it that she “needed” (or was being invited) to tell? Insofar as it was appropriate at all, it was not properly prepared, and the questions asked of GD reveal that the interviewers were at sea; it is to be noted that “[a] well-conducted interview will only occur if appropriate planning has taken place. The importance of planning cannot be overstated.” (§2.1). It is clear that there was minimal planning. Recent judicial commentary on ABE interviews is to be found in the Court of Appeal’s decision in Re E [2016] EWCA Civ 473 at [24]-[45], which in turn endorses in large measure what Sir Nicholas Wall P had said in the case of TW v A City Council [2011] EWCA Civ 17; [2011] 1 FLR 1597; the following observations are relevant to the facts of this case:

 

a) ABE interviews of children must always be conducted by professionals who have been trained to apply the ABE Guidance;

b) The fundamental principle which underlies the ABE Guidance is that those who elicit evidence from a child must conduct themselves in such a way that the child is given the maximum possible opportunity to recall freely, uninhibited by questions, what he/she is able to say.

c) The ABE Guidance emphasises (at para 3.108) that photographs (or drawings, pictures, symbols, dolls, figures and props) “should be used with caution and never combined with leading questions.”

 

  • The Local Authority is right to concede the inappropriateness of the ABE interview being conducted by inexperienced social workers, contrary to judicial and other guidance. It is further right for the Local Authority to concede that the photograph of Girl Y should never have been shown to GD. SW1 was wrong to mislead GD that the photographs were all from a “family album”; that was manifestly not so in relation to one of the pictures. One of the lowest points of this blighted history was the act of showing GD an edited version of an illegal download of a child abuse victim lying on her back with her legs apart exposing her genital area (albeit pixelated) under an entirely false pretext that the interviewers believed it was her and that the photograph had been located in a family album. I agree with the mother when she argues that it was “fundamentally wrong” for the Local Authority to interview GD in this way. Had the Children’s Guardian been aware that the interview was to be carried out in this way (and I am satisfied that he was not) he says that he would have “objected in the strongest terms”, and rightly so.
  • Showing the pixelated photograph to GD, and misleading her as to its provenance, were blatant breaches of GD’s right to be treated fairly by the Local Authority. There is no doubt that the interview itself would have been distressing to GD; the manner in which it was conducted was designed or intended, it seems to me, to produce evidence which falsely implicated the mother. If GD was “defensive” in interview (a point relied on by the Local Authority as part of its “wide canvas”) this is not entirely surprising. The Local Authority knew that GD was not Girl Y by this time and should never have proceeded in its investigation in this way. I accept the Claimants’ case that it was undignified and demeaning for this eight-year-old girl to be put through a formal interview process which was unnecessary and which sought to inveigle her into providing evidence to support a false allegation.

 

 

 

The Judge has made his findings that there was not bad faith on the part of the Local Authority, and that judicially speaking is that. I’ll keep quiet as to my own views on the matter.

 

 

The findings in relation to the police

 

Findings: West Yorkshire Police:

 

  • Disclosure: The failures of the West Yorkshire Police to comply with its duty of disclosure in this case were extensive; these failures regrettably pervaded the entire course of the case; I consider that it extended the litigation, and ultimately influenced its outcome.
  • I am satisfied that the West Yorkshire Police, and specifically (unless otherwise indicated) DS Hudson:

 

i) Repeatedly failed to comply with court orders for disclosure; those which are obvious from my review of the papers are orders made on the following dates:-

a) 27 February 2015 (this breach is acknowledged in the order of 19 March 2015);

b) 7 May 2015 (in relation to the facial mapping report; this is evident by the order of the 11 June);

c) 10 July 2015 (the order of 21 August 2015 makes clear that the Chief Constable had made only “partial disclosure” of the documents ordered to be disclosed by 17 July);

d) 21 August 2015 (the Police did not disclose by 28 August information relevant to the Kodak photograph);

e) 23 October 2015 (in relation to the Kodak photograph and the origin and date of the short video and the still image of Girl Y: this was not done until trial; although this order was directed to the Local Authority, it was contemplated by the order that the information would be provided by the police, who, indeed, were asked for it; the police e-mailed Ms McMullan indicating that it had no further evidence to submit);

ii) Failed to disclose to the Local Authority and to the mother, on or about 31 March 2015, that the mother had been “eliminated” from suspicion as Woman X, when LGC Forensics advised DS Hudson that this was so; the Police erroneously, in my judgment, initially contended that such non-disclosure was justified as it may “prejudice” the investigation and/or that “piecemeal” disclosure would have been inappropriate. That argument was subsequently abandoned. It surely cannot be justified to withhold evidence from a person accused of a crime which exonerates them. This was not ‘marginal’ evidence. The police engaged in piecemeal disclosure thereafter, thus undermining the very basis of their initial stance;

iii) Failed to make known this information (i.e. that the mother had been eliminated on the basis of the expert assessment) to the parties at court hearings which followed on 7 April, 7 May and 11 June, and which the West Yorkshire Police were legally represented (albeit not by Mr. Mallett who appeared at the hearings before me);

iv) Delayed for one month before they disclosed the LGC Forensics report to the mother and her legal team (the West Yorkshire Police received it on 12 June and only disclosed it after the interview of the mother on 9 July 2015); this report, of course, contained the clear and unequivocal conclusion that MD was not Woman X, and that GD was not Girl Y in the still image;

v) Failed to disclose (after the end of June, or by 23 July 2015 at the latest) that the second (longer) video existed, which indisputably proved that neither MD nor GD featured in the short video; (the mother and her legal team were first made aware of it on or about 18 November);

vi) Failed to disclose (after 17 September 2015, by which time the information was clear) the evidence supportive of the mother’s account that the Kodak photograph had in fact been taken in 2009; this failure was compounded by the fact that the police were in breach of disclosure orders variously made on 10 July and 21 August 2015;

vii) Failed to comply with court orders for disclosure more generally; the representation made by the West Yorkshire Police to the Local Authority after 23 October that it had no further evidence to disclose was false.

 

  • These failures derive from three essential shortcomings in the operations of the West Yorkshire Police in this case:

 

i) A failure to establish or maintain clear lines of accountability in relation to disclosure; Mr. Garthwaite has explained that he had passed on the requests for disclosure to DS Hudson and had received messages from the officer which tended to indicate that the requests had been complied with; DS Hudson believes that responsibility lay with Mr Garthwaite. There was no evidence of any audit of this process;

ii) An indifference which I detected in the evidence and in the conduct of DS Hudson to the importance of disclosure;

iii) An apparent lack of concern about compliance with Court Orders. I turn to this subject in the paragraph which follows.

 

  • Surely no party, or lawyer of any experience, in litigation of this (or any) kind still needs reminding of the importance of compliance with court orders: see what I myself have said in F v M [2015] EWHC 3259 (Fam) ([7] et seq.), and for the most recent example London Borough of Redbridge v A, B and E [2016] EWHC 2627 (Fam), published during this hearing. 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 also Re W (Children) [2015] 1 FLR 1092). As is evident from my summary at [93](i)(a)-(e) above, this did not happen in this case. 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). As Macdonald J in Redbridge went on to say at [12]: “Case management directions are not mere administrative pedantry”, adding:

 

“It is because a care case involves the State intervening in the family life of its citizens that it is so important that the local authority comply with the case management directions made by the court, directions that are designed to ensure the fairness of proceedings the outcome of which can be grave. Further, case management directions are the key tool by which the court maintains fidelity to the statutory principle, embodied s 1(2) of the Children Act 1989, that delay must be avoided. Within this context, local authorities are under a heavy duty to comply fully with orders of the court.” (emphasis by italics in the original).

Macdonald J’s observations apply, in my judgment, with equal force to the responsibilities of the police.

 

  • Had orders been complied with faithfully and conscientiously, the flaws in this investigation are likely to have been avoided, or at least exposed at an earlier time. Moreover, MD was put to the trouble, and the State was put to the expense, of obtaining independent expert advice about the Kodak photograph showing her destroying a hard disk drive; her expert in due course confirmed the date of creation of the photograph as 11 March 2009 – a fact known to the police for several months (March 2015), but not disclosed by them. Had the police revealed its knowledge earlier an important plank of the Local Authority’s case would have been removed, for the authority had sought to use this evidence that the mother had been, or was likely to have been, recently engaged in the business of destroying evidence (i.e. in the period between the first search of the family home and the arrest of the parents in reliance on the photograph which (it maintained) was not visible on the computer system before 2014) as part of its “wide canvas” of evidence implicating her in the abuse (see [82] above).
  • Second (longer) video: I find that DS Hudson did not inform the Local Authority (or indeed any of the other parties) of the existence of the second (longer) video until 18 November. He had multiple opportunities to do so:

 

i) As soon as he was told by the Digital Forensic Investigator, DFI, about it, which was probably by the end of June, but certainly by no later than 23 July;

ii) At Court at the hearing on the morning of 21 August 2015;

iii) At the conference with Mr. Shiels, Ms McMullan and SW1 in the afternoon of 21 August 2015;

iv) As soon as he had seen the video himself, which was at the latest on 24 August.

It is apparent, and I so find, that as at 21 July 2015 when Mr. Garthwaite sent the e-mail referred to at [29], the West Yorkshire Police were aware that (in spite of the expert evidence from LGC Forensics) the Local Authority was continuing to pursue the allegation within the care proceedings that MD was in fact Woman X in the short video.

 

  • In his evidence before HHJ Anderson and before me DS Hudson sought to divert responsibility for the failure to disclose the second (longer) video onto Mr. Garthwaite, with whom, he said, he had corresponded on the subject. I have seen no correspondence from DS Hudson to Mr. Garthwaite in which he requests that the existence of the second (longer) video be disclosed to the Local Authority, let alone the respondent parents. I reject his case about this. Regrettably, as I mention elsewhere, Mr. Garthwaite knew of the existence of the second video, but did not appreciate its significance (see [30] above).
  • The short video / the superimposition montage: It is obvious from the internal e-mails passing within the West Yorkshire Police at the material time that serious misgivings were expressed by DFI, and separately indeed by DS Hudson, to Mr. Garthwaite about the appropriateness of facilitating the viewing by the lay parties and their lawyers of the short video; this was particularly in light of the fact that it was known that this had no relevance to the investigation of, or the public law proceedings concerning, this family. The situation which arose in relation to this highlights vividly the lack of strategic leadership in the management of the joint investigation and in its relationship with the Local Authority, and the failure of Mr. Garthwaite (as the solicitor for the force) to gain an understanding of the significance of the evidence.
  • Misled the Local Authority: I am satisfied that DS Hudson caused or encouraged the Local Authority to believe that Woman X could be the mother. This is evidenced by the fact that at the conference on 21 August 2015,

 

i) He showed the short video to the Local Authority representatives (inferentially he was holding out that it had probative value in the CA 1989 proceedings):

ii) He drew attention (during the showing of the video) to the existence of the ring on the same finger on Woman X as that worn by the mother;

iii) He pointed out (during the showing of the video) the watch worn by Woman X, which – he said – was not found in the search of the house.

At that time, he knew that the mother had been definitively excluded from consideration as Woman X. Of course the watch was not found in the search of MD’s house: the woman wearing the watch was not MD. There was no significance to be attached to the ring worn by Woman X. DS Hudson knew that.

 

  • DS Hudson showed the Local Authority lawyers the superimposition montage on 17 September; the only plausible explanation for the officer presenting this evidence to the Local Authority at that time is that he was encouraging the authority to pursue a case that Girl Y was indeed GD in the still image, even though he knew that this was, on the evidence of the expert not so (and when he knew also, on his viewing of the longer video, that GD was not the girl in the video either).
  • Witness statement of DS Hudson (dated 22 September 2015): The West Yorkshire Police rightly concede that the witness statement of DS Hudson (22.9.15) was seriously misleading in both what it contains and in what it does not contain (see the concession at Annex B [6] below). I was unconvinced by DS Hudson’s protestations that he did not realise that by providing such a limited statement, and indeed by providing only the material he did, a wholly distorted view would be given of the investigation and its outcomes. It is well-established now that by the time he provided the statement, he knew that MD was not Woman X, yet the statement tended to point to the contrary conclusion. For instance, his statement includes this paragraph:

 

“The footage of the images and videos recovered from the forensic examination identified a video containing footage of a women (sic.) with the facial appearance of [MD], the face of the women (sic.) in the footage can be seen, not a common factor as those abusing children do not want to be identified, also the woman wore a ring on her right hand finger which is the same hand [MD] wears a ring as seen in other family footage of her”.

The statement further referred to DS Hudson’s belief that Girl Y bore a striking resemblance to GD. This statement drew attention only to those pieces of evidence which implicated the mother; he failed to refer to the following crucial facts:

i) By the time he signed the statement, he had undoubtedly received information that the short video was an extract of a longer video which demonstrated beyond peradventure that Woman X was not MD;

ii) The video undoubtedly originated in the USA;

iii) No watch had been found in a search of the mother’s home which matched the watch in the video;

and

iv) The police had clear evidence from LGC Forensics, which they had accepted that MD and GD had been eliminated as a match for Woman X and Girl Y respectively.

 

  • DS Hudson told HHJ Anderson that he understood the purpose of the statement was “to outline my involvement with the family”, and separately “to provide a snapshot of my investigation into [MD]”. He conceded at that hearing that he had been in “error” in providing the statement which he did. He further told HHJ Anderson that he knew at the time of providing the statement that the Local Authority was continuing to pursue the finding that MD was Woman X, a contradiction from the evidence placed before me. There was the occasional sign in his oral evidence before HHJ Anderson (of which I have the transcript) of his confused thinking, for instance posing the rhetorical question (when probed about his knowledge of the video originating in the US): “who am I to know that she has not been on holiday to America?” (later dismissed by him as a “throwaway remark” for which he apologised). It was that confused thinking, coupled with an unworthy desire to see MD proven to be Woman X, which I believe permeated his dealings with the Local Authority. At this hearing he has acknowledged that:

 

“… in providing such a limited statement, without expressly confirming the use to which it would be put, I afforded the opportunity for the Local Authority case to be progressed in the way that it was… I can see now that I was overly-reliant on the Local Authority legal representatives in dictating the content and scope of my statement…”

 

  • Failure of recording: It has been important to my investigation to know when DS Hudson viewed the second (longer) video; although I am satisfied that from 23 July at the latest he was aware from DFI that MD was not Woman X, he had not seen this with his own eyes. It is therefore a source of forensic frustration, and not inconsiderable consternation, that the evidence adduced before me revealed such lax arrangements for the recording of viewing or distribution of such highly sensitive materials. DFI made no note of when he found or viewed the second (longer) video, nor when DS Hudson viewed the second (longer) video; yet more concerning is that DS Hudson was provided with a copy of the short video and/or the longer video, but no record was made of when he was provided with them, or their ultimate whereabouts. After his retirement, the second (longer) video was found in the secure safe of his office; no steps had been taken to return it to the Digital Forensic Unit.
  • Generally: DS Hudson appeared affronted that his investigation and his conduct of it was being called into question in this enquiry. DS Hudson had, I have found (see [13] above), declared himself at the strategy meeting in February 2015 to be 90% sure that MD was Woman X, and 99% sure that GD was Girl Y. In my judgment he struggled to shake off those beliefs; the social worker had the sense that he still thought it could be the mother when he met with the Local Authority representatives on 21 August 2015. The mother recorded in her written evidence that she felt that DS Hudson strongly believed throughout the investigation that she was Woman X. When Mr. Marshall gave his evidence to HHJ Anderson in November he described DS Hudson’s reaction to seeing the longer video in July/August thus:

 

“I’d given him clear proof that it wasn’t what he thought from the start but then from there, there was also… He was still convinced of the likeness that was there…” (my emphasis by underlining)

His evidence frankly gave me the same impression.

 

  • As I say, DS Hudson believed that the Local Authority was “looking to pursue” the allegation that MD was Woman X in the care proceedings even when he knew that she was not that woman; at no time did he challenge the Local Authority as to the appropriateness of this pursuit. This belief in the mother’s likely guilt (alternatively his wish to see her proven as the perpetrator of abuse) is consistent with, and provides a unifying explanation for, his conduct in:

 

i) Failing to make clear to the Local Authority and/or to the mother at once, following his conversation with LGC Forensics on 31 March, that MD had been “eliminated” as Woman X; I have found (see [20] above) that he was given this specific information on that date;

ii) Presenting the image of Girl Y to the parents in interview in an effort to trick them (as I find) into believing that it was GD (see [26]) in an attempt to see if an incriminating response may be given;

iii) Showing the Local Authority representatives, the short video of Woman X at the conference on 21 August 2015 when he knew that it did not feature MD, and that it was made in the USA;

iv) During that presentation, on 21 August pointing up the presence of the ring on the finger of Woman X as being similar to that worn by MD;

v) Informing the Local Authority representatives at the conference that a trawl of the family home had not revealed the presence of the unusual blue watch worn by Woman X;

vi) Signing and submitting a witness statement in September 2015 which was highly selective in content and unacceptably partisan;

vii) Failing to tell the Local Authority representatives of the existence of the longer video at that or any subsequent time prior to 18 November (second day of the hearing before HHJ Anderson);

viii) Volunteering in his evidence at the hearing before HHJ Anderson that he could not confirm that the mother “hasn’t been on holiday to America” (implying that she could have been involved in the creation of the video); his later apology and dismissal of the remark as “throwaway” does not expunge the record.

I find that by his conduct and words said and not said, DS Hudson allowed or encouraged the Local Authority to pursue the finding that MD was Woman X. I reject the explanation he gave for showing all parties the short video during the autumn of 2015 prior to the final hearing that he simply thought that “they should know what … the background to the case was”.

 

  • DS Hudson as officer in the case carried much sway with the Local Authority. In his sharing of information, he did not faithfully observe the ‘Golden Principles’ discussed at [71] above (viz. “Necessary, proportionate, relevant, adequate, accurate, timely and secure”). His less than professional approach regrettably contaminated the family proceedings. He was not, in my judgment, effectively supervised by DI Walker during the months under review. She concedes as much. This was a failing on her part, which I consider contributed to the unchecked mischief in this investigation.
  • I note that Head of Legal Services at West Yorkshire Police has made a referral to the Professional Standards Department of the police in relation to the conduct of DS Hudson; the Professional Standards Department has indicated that it intends to await the outcome of this hearing.
  • It was Mr. Garthwaite’s clear role as Legal Adviser to the force to take responsibility for the force’s compliance with the disclosure orders, to be proactive over the disclosure of material more generally, and to have a hand in (or oversight over) the preparation of DS Hudson’s witness statement. My impression was that he was rather detached from these processes, dipping in when unavoidably required to do so, and otherwise placing reliance and responsibility, to an unwarranted extent, on the actions and judgment of the investigating officer. His e-mail to DS Hudson of 21 July (see [29] above), shows a lack of discipline in communication; regrettably, the use of the vernacular (“pin a case”) may well have given a false impression to the officer about the intentions, the judgment and indeed the integrity, of the Local Authority in the prosecution of its case. His lack of appreciation of the significance of the second (longer) video (which would have been apparent on minimal enquiry) contributed to the failings of his department, and of the investigation.

 

 

 

Findings in relation to counsel instructed by the Local Authority

Findings: Intervener:

 

  • There is no doubt that the Local Authority legal team was under joint and several duties to observe essential principles of fairness, and comply with orders of the court; each owed a duty to the court in the administration of justice. Each had a duty not to mislead the court, knowingly or recklessly, and to provide a competent standard of work. In that regard, what I have said about the Local Authority team above in some respects applies to Mr. Shiels.
  • Mr Shiels, an experienced family practitioner, was instructed as counsel on 16 March 2015, receiving his instructions from time to time from a solicitor whom he regarded as “very able and experienced” and with whom he described enjoying a “good working relationship”. There was, apparently, no formal brief or instructions as such; Mr Shiels received his instructions relatively informally through e-mails and telephone conversations. He attended altogether seven directions hearings in the case prior to the final hearing listed in November 2015.
  • There are clear duties imposed on counsel to observe a duty to the court in the administration of justice, to act with honesty and integrity, and not to behave in a way which is likely to diminish the trust and confidence which the public places in the individual barrister and/or in the profession (see the Bar Standards Board Handbook, Core Duties).
  • I have, in reviewing Mr. Shiels’ role, as I have with others, endeavoured not to apply too exacting a standard by viewing the conduct through the lens of hindsight. Mr. Shiels’ approach to the case he was instructed to present, reflected in his advice to his instructing solicitor, appears to me to have been more bullish than it was cautious; that is not a criticism as such, nor a mark of professional irregularity. He was of course evaluating the case in the context (to which I have alluded above) of serious criminal offending within the family home; I consider that this backdrop may have influenced (perhaps to a disproportionate extent) his intention to seek serious findings against the mother which on the evidence were, objectively viewed, likely to be beyond his reach. Central to Mr. Shiels’ advice was that the LGC Forensics report may be wrong, and that there was much extraneous evidence (including the superimposition montage) which could knit together to establish a finding that MD was Woman X and that GD was Girl Y on the preponderance of probabilities. While Mr. Shiels was entitled to the view that the expert evidence may indeed be wrong, and that it was in any event only part of the forensic picture, I discerned limited if any evidence on the papers before me that he had properly thought through how this might be presented to the court. I say so for the following reasons:

 

i) There is no indication in what I have seen that he conducted any detailed evaluation of the strength of the expert evidence of LGC Forensics; the report contained much technical and specialist information and assessment, even if ultimately based on a subjective view of the material; Mr. Shiels had no equivalent expert evidence to rebut it; I remind myself of his e-mail to Ms McMullan on 23 July (see [31] above): “to me, it just looks like mother and [GD]. I think the original instinct of the police that they were 90% sure is correct.”

ii) It seems that he had not appreciated the limitations of the superimposition montage; he described this montage as revealing a “remarkable match” in his opening note, yet had not taken the precaution of sending the montage to LGC Forensics and specifically to the expert for her comment. He has no expertise, or knowledge or skill in the area of facial mapping and I apprehend from his cross-examination of the expert at the hearing before HHJ Anderson, that he had limited understanding of the techniques used in compiling such a video (Ms Pestell describes a range of applicable tests including ‘the flicker test’, the ‘half-image’ approach, the ‘transparency overlay’). Ms Pestell was clear that the video superimposition montage compiled here was not just one which would be unsafe to place before a jury, it was in fact potentially misleading. (see [58] above);

iii) Mr. Shiels wrongly described to HHJ Anderson (and may well therefore have treated) the superimposition montage as expert evidence; it was not;

and

iv) It was at least questionable whether the other matters which he wished to bring onto the ‘wide canvas’ were truly probative of the principal contention that MD was Woman X (see [82]).

His e-mail to Ms McMullan on the 23 July (“to me, it just looks like mother and [GD]”: see (i) above, and [31]) does not, as I say, reveal any analysis or reasoning. Professional “instinct” is useful, but it is not a fool-proof or objective measure of evidential reliability. Mr. Shiels’ ready (and I may add appropriate) acknowledgement of the strength of the expert opinion once the author of the report (Ms Pestell) had completed her oral evidence before HHJ Anderson served to highlight the insecure basis on which his original view was formed.

 

  • Mr Shiels’s failure to mention in his detailed Opening Note the possible (as he knew it to be) US origin of the video recording, and/or the failure of the police to locate the watch worn by Woman X in the search of the family home, is harder to understand or explain. I am not satisfied that these omissions were deliberate (in the sense that he sought to paint a misleading picture), but I am concerned that he was “focused” (see [38]) rather too firmly on constructing a case against the mother, encouraged perhaps by the police, rather than in presenting a truly balanced account. Mr. Shiels’ failure to mention these facts contributed to the Article 6 breaches conceded by the Local Authority (see Annex A[1](a)/(b)/(h)).
  • I found Mr. Shiels to be a straightforward and honest witness. I do not view his conduct in this case as falling below the standards of a practising barrister. The opinions he formed were, I am satisfied, genuinely held and fashioned by the information he was given. He was unlikely to have been unaffected by DS Hudson’s zeal. It turns out that in a number of respects his judgment turned out to be wrong; but exercise of judgment is after all in the realms of art not science, and it is easy to view decisions in hindsight:

 

“Lawyers are often faced with finely balanced problems. Diametrically opposed views may [be] and not infrequently are taken by barristers and indeed by judges, each of whom has exercised reasonable, and sometimes far more than reasonable, care and competence. The fact that one of them turns out to be wrong certainly does not mean that he has been negligent” Saif Ali v Sidney Mitchell [1980] AC 198 at 231.

Finally, lessons to be learned

  • What follows is not a comprehensive guide to good practice, but some points which require specific attention as lessons to be learned from the experiences of this case:

Collaboration between agencies and inter-agency working:

i) I have set out the duties of joint working at [68-72] above. The courts expect a high level of co-operation and collaboration between the various agencies conducting joint investigations in relation to safeguarding cases; this was a point I recently made in Rotherham MDC v M & others [2016] EWHC 2660 (Fam) at [10] (“These bodies have a collective responsibility to work in partnership in the discharge of their respective duties, to share information conscientiously, and to maintain clear focus throughout their investigations about their common objectives”); there should be an ongoing dialogue in ‘real time’ between the agencies, and these should be properly recorded – (see below);

ii) Informal discussions (including e-mail ‘discussions’) between professionals conducting joint investigations should be avoided; proper records should be kept of discussions had, and information shared, when and how;

iii) E-mail or other written communications between operational professionals (the Officer in the case, and the social worker) should be copied in to, or pass through, lawyers for each of the agencies, so that there is a clear understanding and record of what information is being shared;

iv) Where meetings take place between the representatives of the safeguarding agencies, a written record should be made of the meeting; that written record should ideally be agreed between the participants.

Disclosure issues

v) Where issues arise as to disclosure of material or information between the police and social services, it is incumbent on the parties rigorously and faithfully to apply and comply with the Protocol and Good Practice Model (October 2013); this identifies as one of its principal Aims and Objectives the “timely and consistent disclosure of information and documents from the police, and the CPS, into the Family Justice System” (3.4).

vi) Where orders are made for disclosure affecting the Police, they must be complied with, or application made to have the order varied or set aside. Orders are Orders (per Re W [2013] EWCA Civ 1177, and specifically in this regard §7.4 of the 2013 Protocol and Good Practice Model). It is not for the Police to apply their own judgement as to the relevance or otherwise (in their eyes) of what they have been required to disclose; it is the plain and unqualified obligation of every person or body against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is varied or discharged;

vii) If the Police consider that the material disclosed requires an explanation/clarification (for example, if the Police consider that it may be misunderstood or given a significance that it does not merit) the Police can make this clear, in the first instance, with a letter accompanying the disclosure and, if need be, by providing a written statement to that effect;

viii) Where information or documentation which is relevant to the public law proceedings is provided by the police to a local authority, that material shall be disclosed to the other parties unless the court, on application by either the local authority or the police, has granted permission for non-disclosure (see for instance Re B (Disclosure to Other Parties) [2001] 2 FLR 1017, and Durham County Council v Dunn [2012] EWCA Civ 1654, [2013] LGR 315);

ix) It is recognised that there may be occasions when the Police seek to delay disclosure on the grounds of prejudice to an ongoing criminal investigation, and this may indeed be merited for a limited period of time (see §6.4 of the 2013 Protocol and Good Practice Model). However, should the police wish to withhold material for this purpose, it should raise the matter with the Local Authority and/or the court (see §7.2); if presented to the court, it will be incumbent on the judge to balance the Police’s desire to delay disclosure against fairness to the parties within the care proceedings and the prejudicial effect of delay upon the children.

x) Furthermore, the Police must always be able to justify any claim of prejudice. Reasons should be provided to the Court. ‘Prejudice to the investigation’ is not to be used as a generic objection to disclosure. Any assertion of prejudice must be scrutinised rigorously and must be kept under constant review. It is to be expected that such analysis and review will involving meaningful input from the investigating officer, his/her supervising officer and/or Police Force Legal Services.

xi) If/when any claim to prejudice is withdrawn by the Police or no longer sanctioned by the Court, the Police and Local Authority should disclose to all parties any information which had previously been withheld as directed by court order.

xii) DI Walker advised me that procedures are now in place within West Yorkshire Police to ensure that disclosure to local authorities engaged in care proceedings is overseen by Information Management and that every disclosure is individually itemised, with page numbers, to ensure absolute clarity about the documentation/information provided and the timing of such disclosures. These logs will then be made available for reference by the Courts as and when required. It is important that this standard of record keeping is adhered to.

ABE Interviewing

xiii) ABE interviewing is a skilled exercise, which should only be conducted by trained professionals. It is not acceptable under any circumstances to provide false or misleading information to a child; after all, there is a high expectation that the child will be encouraged to provide accurate information to the interviewers.

Evidence

xiv) Witness statements:

a) A witness statement is the equivalent of the oral evidence which the maker would, if called, give in evidence (PD22A para.6 FPR 2010). It follows that all witnesses who provide written statements should therefore carefully check the contents of those witness statements before they are signed, and should only confirm the truth and accuracy of the same when they have undertaken that careful check. Local authority lawyers should be scrupulous in ensuring that social workers are aware of any editorial changes made to draft statements; the written statements have particular significance at interim hearings given that “the general rule is that evidence at hearings other than the final hearing is to be by witness statement unless the court, any other rule, a practice direction or any other enactment requires otherwise” (rule 22.7 FPR 2010) and in which a “fact which needs to be proved by the evidence of witnesses is to be proved … by their evidence in writing” (rule 22.2 FPR 2010); at a final hearing, of course, “The witness statement of a witness called to give oral evidence … is to stand as the evidence in chief of that witness unless the court directs otherwise” (rule 22.6(2) FPR 2010);

b) Where a statement of evidence is sought by a Local Authority from a police officer involved in a parallel investigation, such a request should be in the first instance to the District Safeguarding Inspector, and it should be made in writing. If contentious issues arise, then Legal Services of the Police should be involved. It should be clear in any request, and understood as a matter of common practice, that any statement of evidence must provide balanced and accurate information and not mislead by matters either included or omitted; any statement should include all matters which in the view of the District Safeguarding Inspector (and/or Legal Services, if involved) will assist the Family Court in reaching decisions in the best interests of a child, whether that is helpful or adverse to the particular case being advanced by the Local Authority; the statement should be prepared by the Local Authority solicitor. The current policy of the West Yorkshire Police provides for the officer to be interviewed by a Local Authority representative (I would propose that this be a lawyer) in the presence of an Inspector (or higher ranking officer). This makes good sense. It appears that DS Hudson was unaware of the policy at the time he prepared his statement; I understand that DI Walker has referred the matter to the Safeguarding Central Governance Unit in order that all officers involved in safeguarding work can be reminded of its contents;

xv) Different rules, procedures and expectations arise in the instruction of experts in criminal and family proceedings; there are material differences between Part 25 (and PD25) of the FPR 2010 and Part 19 of the Criminal Procedure Rules 2015. Where an expert has been instructed in the criminal process on whose evidence the Local Authority wishes to rely, the Local Authority should take steps to ensure that the evidence conforms to the requirements of Part 25 and the associated Practice Direction 25B. Any further approach to the expert should conform to the requirements of Part 25;

xvi) The procedure for submitting questions to experts should be used promptly and in accordance with Rule 25.10 FPR 2010.

Repeat medical examination

xvii) GD was subjected to two medical examinations within a few days of each other in March 2015; the first was an intimate medical examination. The repetition of investigation of this kind is highly regrettable, and I suggest was wholly avoidable. The Local Authority social work team manager explains that the police medical was undertaken by a police forensics surgeon “who would not have been able to undertake a LAC medical. The LAC medical was undertaken by LAC nurses”. This still does not explain why the exercise could not have been conducted collaboratively with the sharing of information and findings. I therefore recommend that:

a) There is a duty on the investigating authority to satisfy itself that there is a proper basis for an intimate medical examination – either, for example, a disclosure of abuse by the child, or a direct allegation of abuse which would be clarified by the intrusive examination;

b) The Police and Local Authority should co-ordinate their enquiries so that a child is not subjected to repeated medical examinations (required for different purposes), particularly within a short space of time;

c) By the time of the medical examination, the Local Authority had parental responsibility for the child under an ICO and gave consent. However, the parents (also with parental responsibility) should have been consulted; in the absence of agreement, a court order should have been sought authorising the medical examination;

d) A report of the examination should be made available to those with parental responsibility, and, where relevant, the court.

These observations coincide with the clear guidance offered in the ACPO Guidance at section 4.4, the College of Policing: Major Investigation and Public Protection; Child Abuse; Further Investigation (first published 21.01.14; last modified 16.11.15), section 3; and the ABE Guidance at para 2.41.

 

 

 

Advertisements

section 20 and human rights damages (£17,500 award)

 

Kent County Council v M and K (section 20 : declaration and damages) 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/28.html

 

The judicial trend for curbing the worst excesses of section 20 continues (see for example  https://suesspiciousminds.com/2015/10/21/fast-and-the-furious-tunbridge-wells-drift/ )

Apologies to the people of Kent, I know some of you are readers, and it is nothing personal, I just report the cases as they happen.

In this case, there was NO issue as to whether the original section 20 consent was lawful (the parents had capacity, and the principles laid down by Hedley J had been properly followed), but the drift and particularly here the failure to issue care proceedings in a timely fashion were what led to the human rights claim, and later damages.  Most of the s20 drift cases involve very young children – in fact infants, but this one involved an older child whose difficulties were significant and got worse over time.  This one is unusual in that it was not the parent complaining that drift and delay had impacted negatively on them, but the child arguing that although the mother had granted valid s20 consent and was not seeking rehabilitation of the child, the LA’s failure to issue care proceedings had harmed the child.

 

 K was placed in the care of the LA pursuant to section 20 Children Act 1989 (CA 1989) on 14 December 2011, the LA issued these proceedings on 16 November 2015. The HRA claim is put under three headings: the failure of the LA to assess K; failure to meet K’s needs and the failure to issue court proceedings. The LA deny this claim. K’s mother supports the claim. 

 

Just shy of four years of s20, that does seem like a long time – from a child’s perspective it is a massively long time, more than a fifth of their total years of childhood.

The Judge sets out the background prior to proceedings being issued. It is long, but I’ll put it in full, because it shows clearly the missed opportunities for the case to be seized and the drift put right. Many many LAC reviews.

  1. K was accommodated by the LA, pursuant to s 20 CA 1989, on 14 December 2011. Prior to that she had been living with her aunt, as her mother was unable to cope with her care. K has a younger sister who remains in her mother’s care. Her father has taken no active part in her care, or these proceedings.
  2. The LA had had prior involvement with K. They had completed a core assessment in April 2011 when K was living with her aunt. The assessment recorded the need for M to address her own mental health needs, K’s relationship with her M was difficult which ‘will certainly impact on her emotional and behavioural development’, and ‘[K] may well need some intervention from the primary mental health team to support her with the difficult feelings and interactions she has with her mother and sister’. The recommendations in the assessment included M to give parental responsibility to the aunt.
  3. On 5 December 2011 K’s aunt informed the LA that she was unable to continue to care for K. K’s mother, M, gave her consent to K being accommodated by the LA by telephone that day. There is no issue that this was a valid consent.
  4. The documents show a placement plan was formulated on 14 December, providing that the period of accommodation pursuant to s 20 was for an initial period of four weeks, pending the convening of a family group conference (FGC), to consider whether any alternative family placements could be explored. This plan recorded ‘It is a concern that [K’s] emotional needs has not been addressed in an appropriate way during her short life’. This care plan was signed by M.
  5. At the Looked After Review (LAC Review) on 6 January 2012, it records K needing a referral for therapy/counselling and a referral had been made to the Lenworth Clinic (next meeting 25 January). The care plan is recorded as being ‘Eventual return to birth family’. And under the ‘Assessment’ sub heading, it states a core assessment ‘to be updated’. Under ‘Emotional and Behavioural Development’ it states K is ‘known to CAMHS and plan is that once [K] is settled fully they will start working with her’. These LAC Review minutes are signed by M.
  6. On 11 January 2012 the family met at the FGC, and all agreed that it would be better for K to stay in foster care as none of the family were able to have K live with them. M signed this document, signifying her agreement to this plan.
  7. At the next LAC Review on 27 March 2012 there is a record of a meeting at the Lenworth Clinic on 25 January 2012, an acknowledgement that K needs a referral for therapy/counselling. It records the referral to the Lenworth Clinic and notes ‘no work will be undertaken with her until current foster placement would be confirmed for long term’. The acute difficulties between K and her M at contact are noted. Importantly, this record notes the change in care plan for K to long term foster placement with foster carers, but acknowledges K has not been informed. It records the core assessment has been completed (although no updated core assessment has been produced) and notes it recommends that it would be ‘advisable to convene a legal planning meeting for the [LA] to seek advice regarding [K’s] care status and issue of parental responsibility’. This advice is repeated in the care planning section, where it records ‘legal advice needs to be sought re long-term fostering as permanency for [K] and Parental Responsibility issue’. This topic is recorded in the decisions and recommendations section as ‘Legal advice to be sought re Parental Responsibility Issue By whom – Social Worker and her manager Timescales – 27/04/12′. This document is not signed by M.

 

 

Quick break in the background – the chronology there shows that by April 2012, there had been a decision that there needed to be a legal planning meeting to discuss the child’s legal status and plans for the future. In the next section we learn that some form of meeting with legal happened in June 2012.  We know that care proceedings were not issued until November 2015. Let’s continue.

  1. The advice from CAMHS of K being unable to benefit from individual therapy until she is ‘firmly ensconced within a family unit’ is confirmed in a letter copied to the LA from the Lenworth Clinic. The LA urge CAMHS to reconsider their position in a letter dated 2 May, stating that K is ‘settled down and doing exceptionally well in the foster placement’. In June CAMHS respond to say they have sent the foster carers a questionnaire and when it is returned the referral will be discussed further.
  2. K’s placement broke down on 5 July, in circumstances where her behaviour was so difficult the police had to be called.
  3. At the next LAC Review on 12 September 2012 there is reference in the record of the meeting to a legal planning meeting on 25 June 2012, but no other detail about this meeting has been disclosed. As regards the CAMHS referral it notes K has moved placements and another questionnaire will be sent to her new foster carer. The record repeats that K needs a referral for therapy/counselling and notes the concerns regarding K’s emotional well-being caused by her wish to live with her mother, why her sister lives with her mother and she can’t, and her mother’s inconsistent behaviour at contact. It continues ‘[K] has been emotionally and psychologically affected by her experiences. She does require psychological support as soon as possible…It is hoped that once this [questionnaire] has been received by CAMHS appointments will be set up’. Under the section entitled ‘Legal’ it states ‘A legal planning meeting needs to be pursued with regard to care proceedings’. There is reference to the core assessment and care plan to be updated. Under ‘Decisions and Recommendations’ is recorded ‘Care proceedings to be pursued in order to give this child some stability and long-term placement. The referral to CAMHS to be pursued and the questionnaire to be completed by the previous and present foster carer.’ M did not sign this record.
  4. On 27 September the LA were informed by the Lenworth Clinic that as K was no longer placed in their catchment area they were referred to the CAMHS resource in the area of the new foster placement.
  5. The next LAC Review was on 5 December 2012. There is a repeated reference to a legal planning meeting on 25 June 2012. As regards the CAMHS referral there is reference to Ms A (the LAC Mental Health Specialist in CAMHS) requesting a meeting with the foster carer, which was still outstanding. The record notes ongoing concerns about K’s emotional well being, that she struggles in her relationship with M and M being unable to empathise with K and what she is going through. K has been ’emotionally and psychologically affected by her experiences’ and requires psychological support as soon as possible. The record of the meeting refers to the care plan, stating that the case is twin tracked ‘but the mother is clear that she could not care for her daughter and will therefore not consider rehabilitation home. Given the situation, the local authority needs to pursue long-term plans for [K]‘. M does not sign these minutes.
  6. In April 2013 there is a letter from Ms A to the LA setting out the CAMHS meeting with the foster carer and the social workers. It is accepted by Ms King, for the LA, that K was not present.
  7. The LAC Review meeting on 16 May 2013 refers to the CAMHS meetings being with the foster carer, but then records K ‘has been emotionally and psychologically affected by her experiences. She is currently receiving psychological support via [Ms A] at CAMHS’, later on referring to Ms A as now ‘working with [foster carer] and [K] to advise on strategies to manage behaviours and support the placement’. The CAMHS referral has been noted to have been ‘actioned’. M does not sign the minutes, but is recorded as having been seen on 21 March.
  8. On 16 July 2013 there was an emergency breakdown of the foster placement, there was an alleged assault by K on the foster carer requiring a late night home visit by the LA.
  9. The LAC Review meeting on 5 September 2013 refers to K attending the meeting. The record notes there had been no updated core assessment, no life story or direct work done with K and that this had left her ‘confused and unclear why she could not remain in the care of her mother. This is further exacerbated by a younger half-sibling remaining in the care of [M].’ It continues ‘LA do not hold PR for [K] and no other family members have been identified. The LA needs to give further consideration to this given [K’s] young age and potential difficulties in the future if they do not hold PR…The LA have not been able to safeguard [K’s] emotional well being given the breakdown in placements and the fact that Permanency has not yet been achieved for her…She [K] has previously had intervention and support from CAMHS – it was unclear as to whether this is being offered at present….Legal: Section 20. LA will need to give this further consideration in view of securing stability and security for [K]’.
  10. In January 2014 there is a signed letter from M confirming her consent for the foster carer to sign for day trips abroad and emergency medical treatment. This is followed in February 2014 with a health consent form signed by M.
  11. There is a report from an educational psychologist, following a consultation with K on 6 November 2013 regarding her behaviour at school which is reported to have improved.
  12. Undated LAC Review minutes indicate a meeting took place in January 2014. There is reference to Ms A working with K in January 2013, which it is accepted is incorrect as no direct work was done with K. The minutes refer to Life Story work being started, but not completed. There is no entry in the box regarding consideration of any new legal orders. Under the section entitled ‘Is this the preferred placement option for this child/young person?’ it says ‘No’, when asked why, it states ‘It is preferred that [K] return to a Local Authority Foster Placement’, when asked about alternative plans it states ‘An assessment is being undertaken to fully identify [K’s] needs’.
  13. In May 2014 there is a letter from SM (Senior Systemic Psychotherapist CAMHS) to the social worker confirming the four professional meetings and their conclusion that ‘the uncertainty about her future is affecting [K’s] emotional well-being and since [the foster carer] is similarly unable to provide reassurance to [K] this is having an impact upon [K’s] attachment to the [foster carer] and the [foster carer’s] attachment to [K]. [the foster carer] must, by virtue of not knowing, withhold some aspects of ”normal’ family life as such as planning for the future. It could be that this is, in part, why [K] believes she may still return home, and why she has seemed confused in her thinking. Other issues notwithstanding, it would seem that [K] is positioned between two families and needs to know who she is going to live with long term. It must be borne in mind that multiple moves (such as have occurred for [K]) can only increase her sense of loss and reduce her hope that there is someone and somewhere she can feel safe and secure. It is not surprising that she displays very challenging behaviours, she must feel enraged and despairing.’
  14. At around this time M writes a letter to K, to explain why she can no longer care for her.
  15. In the LAC Review minutes for 18 June 2014 K is noted as attending. They note that the LA have not pursued to change the legal status for K as work was being undertaken with M and she is supporting the care plan. It notes that the social worker has ‘undertaken and completed much overdue life story work’ which M has supported so K has a clear message she is not returning home. Under ‘Legal’ the minutes record ‘[K] remains accommodated under s 20. Whilst Mum continues to give consent and work with the LA in care planning for [K] there are no indications to change this.’ In July 2014 M gave her consent for K to go on holiday with the foster carer. In another record of this meeting it notes ‘[K’s] emotional and physical behaviour continues to be of concern within the placement and this is felt to be due to the level of uncertainty she still has in regards to her placement due to being told she may be moving placements/is staying and the confusion this has caused her….a plan of permanency has not been agreed for the IFA placement due to Kent’s current policy on IFA placements..’.
  16. In September 2014 the foster placement broke down due to K’s disruptive behaviour and in October she moved to her fourth placement.
  17. At the LAC Review on 20 November 2014, which K attended, the minutes confirm that individual support from CAMHS has yet to be offered. As regards the care plan meeting the need for permanency it records ‘Yes – if stability of Placement is achieved. Consideration also needs to be given to [K’s] Legal Status which is s20 and has been since December 2011’. A little further on under ‘Legal’ it records ‘IRO has asked that LA give consideration as to how her Legal Status could be more secured.’ Under ‘Decisions and Recommendations’ the minutes note that the social worker is to request senior managers to write to CAMHS to secure appropriate level of service including a definite date for State of Mind Assessment. Also the social worker is to raise with managers K’s legal status and advise IRO of outcome. One record of this meeting refers to concerns about the increased use of restraint and sedatives in her previous foster placement, with no further reference to how this was dealt with or whether M was informed.
  18. A file note dated 7 December records discussions with the out of hours social worker. K had told the foster carer that ‘she could go back to her mum any time’. The record ends with the following ‘K needs to be spoken to urgently by her social worker tomorrow as she needs to feel validated and listened to and clearly needs an explanation about her current status in care and why she is not in her mother’s care. It seems she has some unrealistic expectations about return to her mother’.
  19. On 5 January 2015 there is an out of hours file note with the foster carer seeking to end the placement due to K’s behaviour. K moves to her fifth placement on 16 January.
  20. A file record on 18 March 2015 notes that CAMHS have not yet made any contact with the foster carer, although the school have made contact for K with another project.
  21. In around June 2015 the LA make a referral to Great Ormond Street CAMHS where they note K has ‘been passed around services for the last 18 months with no real support or assessment in place. The [LA] feel this in unacceptable for K and she needs a professional team to take responsibility for completing an assessment and putting a plan in place to address her needs’. The referral records it has the support of the service manager, Ms Ransley.
  22. K’s behaviour deteriorates again and the police are called. She moved to her sixth placement on 10 June 2015 for one night, before being placed with Mr and Mrs M her current carers on 11 June 2015. They are her seventh foster carer in four and a half years.
  23. The LAC Review minutes for the meeting on 7 July 2015 record the attendance of Ms Ransley and K and M’s apologies. The referral to GOSH is noted. Under ‘Legal’ it records ‘[K] remains accommodated under s20. Discussions have been ongoing outside of the CIC Reviews with LA regarding this. NB Subsequent to this Review Service manager advised via email that Care Proceedings will be filed in first week of September’.
  24. A psychological report dated 6 August 2015 details the number of moves K has had and recommends a referral to GOSH, which had already taken place.

 

 

This is very tricky. On the one hand, this child was clearly uncertain about her future and getting very mixed up by it. On the other hand, the Local Authority had a mother who was genuinely consenting to the child being in foster care and accepting that she was not able to care for her. There’s at least an argument that in keeping this outside of care proceedings, although the length of s20 was unusual, the LA were observing the least interventionist approach which is the spirit of the Children Act 1989. Bear in mind that the Court can only make an order if it is better for the child than not making one, and here we had a mother who was working with the Local Authority and in agreement with the foster placement and accepting that she could not resume care of K.  I can understand the LA doubt about whether an application for a Care Order could have resulted in a Care Order being made, given that mum was working with the LA and giving valid s20 consent.   It is the unusual position of it really being the child who was unhappy with the s20 rather than the parent.

 

It was the Guardian, on behalf of K, making the Human Rights Act claim. Here are the Guardian’s arguments as to why there was a breach of K’s human rights.

  1. On behalf of K it is submitted that when K was received into care in 2011, at the behest of the LA, they were already aware from their own core assessment in April 2011 of her considerable difficulties in her relationship with her mother, and that she may need some intervention from the primary mental health team. Despite this knowledge in their own assessment the LA failed to;
    1. (i) Update her core assessment for over 2 years, despite repeated recommendations at LAC Reviews to do so.

(ii) Seek a psychological assessment of K’s family. The LA had recommended this should be done at a meeting in January 2005.

(iii) Seek a psychiatric or psychological assessment of K until 2015, despite that being recommended in LAC review meetings from March 2012. It is acknowledged she did see an educational psychologists in November 2013, but this concerned her behaviour at school. Some of the LAC reviews appeared to proceed on the basis that she was seeing someone from CAMHS, but the report dated 6 August 2015 from the trainee psychologist VT makes it clear she had not met K.

(iv) Life story work, although repeatedly recommended in LAC reviews did not start until over 2 years after she was received into care.

  1. In her statement the Guardian deals with the lack of assessment in the following way; ‘If such an assessment was sought many years ago work could have been done on the mother/child relationship which may have prevented the need for [K’s] permanent accommodation. In any event work could have been carried out on attachment and behavioural issues and therapeutic intervention could have assisted [K’s] development which suffered by this not happening…This is an assessment that the LA could have commissioned itself, if CAMHS would not agree to undertake it’. Mr Hall rejects any suggestion in the LA evidence that they recognise, with the benefit of hindsight, they may have acted differently. He submits the need for assessment was obvious from the time K was placed with foster carers in 2011. K’s attachment difficulties with her mother needed urgent assessment, and then effective support put in place. That was repeatedly recommended, but not done.
  2. Turning to his second heading, Mr Hall recognises that it is inter-linked with the failure to assess. In the record of the LAC review meeting on 5 September 2013 the LA candidly recognise they have ‘..not been able to safeguard [K’s] emotional wellbeing given the breakdown of placements and fact that permanency has not been achieved for her.’
  3. There have been 7 placement breakdowns, often at short notice and in upsetting and distressing circumstances for K. The records have many references to the extent the placement breakdowns have caused K emotional harm. In their referral for a psychological report in 2014, some three years after K has been in the LA’s care, the reason for a different picture at school emerged. As the record of the meeting notes ‘…[K] has learnt to cope by withdrawing emotionally and functioning independently whilst maintaining control over her environment. This works well at school and when she first enters into a new placement. However, this coping strategy breaks down at home as she starts to settle and get close to the foster carer…’ To illustrate this Mr Hall relies on the report to the LA review in January 2014 concerning K’s third foster placement with Mr and Mrs T. The social work report for the review notes that K was happy and beginning to form an attachment to the foster carer, but as it was an agency placement the LA, as a matter of policy, were unable to sanction this placement as a long term placement. The report notes that this lack of certainty in the placement was impacting on K’s emotional well-being. This view was endorsed in a letter dated 15 May 2014 from CAMHS and it went further in stating ‘It must be borne in mind that multiple moves (such as have occurred for [K]) can only increase her sense of loss and reduce her hope that there is someone and somewhere she can feel safe and secure. It is not surprising she displays very challenging behaviours, she must feel enraged and despairing.’
  4. Between December 2011 and February 2016 Mr Hall submits the LA have not ensured K has received appropriate therapy; had they done so the Guardian considers K’s family life is likely to have been very different. At the LAC review on 4 February 2015 it was recorded ‘…It is imperative that therapeutic support is offered to [K] to enable her to become more stabilised to reduce the risk of further placement breakdowns’.
  5. Under the third heading, the failure of the LA to issue court proceedings, Mr Hall also recognises is linked to the first two. He submits on the LA’s own records K suffered from instability from spending so long in foster care, with only her mother having parental responsibility and no clear direction. K’s current social worker Ms A sets out in her statement in support of these proceedings ‘It is envisaged that a care order will also support [K] in terms of feelings of security and stability, as she has historically struggled to understand the decisions made by her mother, and therefore she will know that there will be a level of oversight to her care planning’.
  6. Mr Hall submits if proceedings had been issued there is every likelihood they would have made a difference. The repeated failures by the LA to follow through their own decisions would have been subject to effective scrutiny, by the guardian, her legal representative and the court. The issue was repeatedly flagged up by the LA from March 2012, but not followed through. Had K been represented in court proceedings, there would have been proper oversight, the plans would not have been allowed to drift and assessments would have been undertaken when required. Whilst K’s mother did not raise any complaints at the time about how K was cared for by the LA, she had not been able to provide consistent and predictable care for K before 2011, K’s mother had her own mental health difficulties, she was inconsistent in her attendance at LAC reviews and her contact was gradually reduced to the extent she was only seeing K once during each school holiday. Mr Hall submits it is difficult to see how she could be regarded as someone who was proactively exercising her parental responsibility in relation to K.
  7. As regards any suggestion by the LA that s 20 is not time limited and/or is not always a prelude to care proceedings Mr Hall submits the LA’s own records point in the other direction. In particular,
    1. (i) On 12 September 2012 the LAC review records that a legal planning meeting needs to be pursued with regard to care proceedings noting ‘care proceedings to be pursued in order to give this child some stability’ and long-term placement’.

(ii) On 16 May 2013 the LAC review records that the LA are to review current legal status within next 3 working weeks and advise IRO of outcome.

(iii) 5 months later on 5th September 2013 the records note the LA does not hold PR for K and ‘the LA needs to give further consideration to this given [K’s] young age and potential difficulties in the future if they do not have PR…the LA have not been able to safeguard [K’s] emotional wellbeing given the breakdown of the placements and the fact that permanency has not been achieved for her’.

(iv) 14 months later on 20 November 2014 the LAC review notes ‘IRO has asked that LA give consideration as to how her legal status could be more secured…Sally to raise with managers [K’s] legal status and advise IRO of outcome’.

(v) 4 months later on 4 February 2015 the LAC review records similar concerns being expressed by the IRO as to K’s legal status.

  1. The LA issued care proceedings on 16 November 2015. Mr Hall submits the fact that care proceedings were finally issued conclusively responds to any suggestion by the LA as to their necessity. Otherwise, he asks rhetorically, why did they issue them? He submits that the failure to issue the proceedings soon after K was placed in care has denied K the opportunity to be properly assessed and access appropriate support at a much earlier stage as, he submits, it would be inconceivable that a court would have permitted care plans to be made without a proper assessment of K’s needs. As a result K has lost the opportunity to have the input of a Guardian, a legal representative and planning for her care to be properly and robustly based on sound assessment.
  2. Mr Hall submits the detrimental effect on K of the LA’s failure to secure emotional, practical and legal stability for her is clear from the LA records and the Guardian’s evidence.

 

The point here on the delay in issuing care proceedings that it is not merely the making of a Care Order that is achieved within care proceedings – having judicial and Guardian scrutiny of the care PLANS is a vital part of the process and if this had happened, K would have had a better care plan much sooner and suffered less disruption and harm in care.  The journey through care proceedings, says the Guardian, is just as significant as the ultimate destination.

 

What did the LA say?

 

  1. Ms King on behalf of the LA does not dispute the LA records. She submits there is no issue about the validity of the consent given by K’s mother, either at the start or during K’s placement with foster carers. She submits neither statute nor any guidance stipulate s 20 is a short term measure only. In this case, unlike the reported cases, there was not any dispute about the LA’s care plan for K. So, she submits, the starting point is very different and distinguishes this case on the facts.
  2. Ms King submits the documents show there was considerable involvement by K’s mother, such as the number of written consents provided by her for the foster carers to sign forms for her, the letter she wrote to K about why she was placed with foster carers. The submission on behalf of K that they should have issued care proceedings earlier does not amount to a breach of her article 6 and 8 rights.
  3. She submits there is no evidence of a failure to plan for permanency in that the LA investigated the options with the family first, when this was not possible their plan for K was to be placed with long term foster carers. They acknowledge the high number of placements, but state being within care proceedings was unlikely to have made any difference to the efforts made by the LA to secure a permanent placement. Ms Ransley, the service manager for the area at the relevant time, states ‘Providing children with stability within foster care is often a challenge (this is irrespective of their legal status) and this sadly was the theme for [K]. [K] experienced numerous foster care breakdowns within both the in house provision and the commissioned private foster care sector, which is regrettable but not unusual within a care system which operates a 30 per cent disruption rate. Finding the right match where it clicks, can often evade even the most meticulous professional.’ Ms King submits no link has been established that the situation would have been any different if care proceedings had been issued earlier than they were.
  4. Ms King refutes the submission that the LA failed to assess and/or provide therapeutic support for K. She submits the papers demonstrate the appropriate referrals were made to CAMHS but CAMHS concluded they should provide a service to the carers, not directly with K until she was settled in her placement. Whilst Ms Ransley in her statement acknowledges the LA’s frustration with the position taken by CAMHS that is the service provided to meet the mental health needs for children by the NHS, which is what the LA commissions for children in their care. Ms King relies on the fact that the Guardian has not sought an independent assessment within these proceedings.
  5. Ms King submits the submission on behalf of K that as a result of the LA breaches K’s welfare has been harmed, is speculative. Given the harm K suffered prior to coming into care and the extent to which that has been the root cause of her placement breakdowns and the uncertainty over CAMHS support due to placement uncertainty, such harm as might be found proved cannot be attributed directly to the failings of the LA to the extent of a breach of K’s article 6 and 8 rights.
  6. Finally, Ms King submits K’s mother has exercised her PR in a way regarding K’s accommodation that was and is consistent with her welfare. There were no alternative carers for her and K had an IRO. Ms King states in her written skeleton argument ‘Whilst the LA accept that it is better for [K] that a care order is made so that her position as a child in care is formalised by way of an order which signals permanency and confers PR onto the LA, none of those advantages mean the LA has acted unlawfully and/or breached [K’s] Article 6 rights. Her mother exercised her PR in a free and informed manner. Her mother decided that [K] was best looked after by the LA. She was entitled to take that decision and the LA was entitled to act on it’.

 

I think that those are good points – somewhat weakened by the number of placements and the child being at times sedated in care, which is a very unusual set of circumstances, but on the whole, the Local Authority had a decision to make as to whether care proceedings would achieve something for the child that could not be achieved without it.  I have certainly had cases (with the child not having such a bumpy ride in care) where with an adolescent in a settled foster placement I have advised against care proceedings where the parents are giving long-term and capacitous section 20 consent with no prevarication.  For a significant part of that four year period,

We know from the headline though that the LA lost here, so let us cut to the chase.

 

Discussion and decision

  1. There is some force in the submission made by Ms King that the facts in this case are different than those in many of the reported cases concerning the misuse of s20. A common feature of those cases was an issue over the parent’s consent to their child being accommodated and the lack of agreement with the care plan; neither of those matters featured in this case.
  2. Ms King builds on that position as, whilst acknowledging what the President said in Re N (ibid) about s 20 having a role as a short term measure, she seeks to rely on the fact that there is nothing specific in the section, or guidance, to found that view.
  3. The difficulty with Ms King’s position is that the documents produced by the LA paint a picture of
    1. (i) A mother who has to a large extent abdicated her parental responsibility to the LA. Whilst she has some involvement in the decision making after K is placed with foster carers, the fact that she doesn’t seek to challenge the LA inactions in the context of what is taking place demonstrates her inability to exercise her parental responsibility proactively for the benefit of K.

(ii) The LA on the documents decided repeatedly there should be a further/updated core assessment, mental health assessment/therapeutic support and legal advice about K’s status; but the same documents demonstrate repeated failures to follow through these decisions.

(iii) Repeated and worsening placement breakdowns, which were deeply damaging to K’s emotional well-being.

  1. Whilst there is no time limit on providing s 20 accommodation in the statute, each case has to be considered on its own facts, with active consideration being given as to whether proceedings should be issued. In this case care proceedings would have helped significantly to provide the stability and security that K so clearly needed. K would have had the benefit of a guardian and legal representative to give her an effective voice regarding the LA failures and enabled the LA to share PR with M. As the LA accepted in the middle of 2015 K had been ‘passed around services for the last 18 months with no real support or assessment in place’. This is hardly a ringing endorsement by the LA of their own care planning for K.
  2. A common thread in the records is the harm being caused to K by the lack of security and stability any of her placements (other than the current one) were able to offer her. The evidence demonstrates K was acutely aware that her mother could remove her at any time.
  3. I am satisfied that the LA have acted unlawfully, in my judgment their actions have been incompatible with K’s article 8 and 6 rights. I have reached that conclusion for the following reasons:
  1. (1) The failure by the LA over a period of over three years to conduct or update the core assessment done in April 2011 meant the LA had not properly assessed K’s needs during the period she was placed with them from December 2011 to November 2015 to provide a secure foundation for care planning for her, in order to protect her article 8 right to family life. The care plan for long term fostering lacked any detailed foundation that such an assessment would have given it.

(2) The LA’s failure to secure appropriate mental health assessments and/or therapeutic support meant her continued placement breakdowns over that period were unsupported. Reliance on inconsistent CAMHS referrals together with the repeated misunderstanding of what CAMHS support was being provided permeated the decision making and the delay in seeking an assessment until 2015, when a referral was made to GOSH. This all contributed to the increased risk of repeated placement breakdown.

(3) The suggestion that the LA were not able to commission independent private providers on an ad hoc basis does not stand up to scrutiny. In her statement Ms Ransley states ‘Commissioning independent, private providers on an ad hoc basis does not happen. Local Authorities only generally fund these types of arrangements within care proceedings’. Yet this is what the LA did when they made a referral to GOSH in July 2015, prior to issuing proceedings. No explanation is given as to why this could not have been done earlier, other than an acknowledgement in Ms Ransley’s statement that ‘this should have happened sooner with hindsight.’

(4) The repeated failure by the LA to act on its own decisions for over three years to seek legal advice to secure K’s legal position, including consideration of the issue of proceedings and the advantages that would bring for K, together with the LA having PR through a care order. On their own admission in the evidence the LA filed in 2015 in support of the care proceedings, a care order would provide the stability that K clearly required. The delay of over three years in doing so is not justified in any way. That delay meant K was denied access to an independent guardian and her own legal representation, in circumstances where the LA were not implementing their own decisions about her and the only person with PR was not exercising it in a proactive way. K’s article 6 and 8 rights were compromised by this significant delay.

(5) Whilst K’s mother was entitled to exercise her PR for K in the way she did, that does not absolve the LA from actively considering whether it should secure its legal position in relation to the child concerned. Here K’s mother was, at most, after November 2011 reactive rather than proactive in exercising her PR. She responded to requests from the LA and attended some, but not all, meetings. Probably due to her own vulnerabilities she was not in a position to challenge the actions, or inaction, by the LA in relation to K.

(6) Reliance by the LA on the unlimited term of s 20 simply cannot be justified in a factual vacuum. The circumstances in this case demanded for K’s article 8 and 6 rights to be protected, for the LA to secure their legal position regarding K. The LA’s own records repeatedly make decisions of the need to get such advice, those decisions were repeatedly not acted on and when they were care proceedings were issued, nearly three and a half years after they should have been. It is unattractive for the LA to now submit that there was no obligation on them to issue such proceedings. The President’s words in Re N (ibid) could not be clearer.

(7) I am satisfied that if proceedings had been issued earlier the assessments that the LA failed to do are more likely to have been ordered by the court. Reliance by the LA on the fact that within these proceedings the Guardian has not sought any further assessment is a realistic recognition by her of the current position, that with a settled placement and a report from GOSH further assessment is not justified. That does not absolve the LA from responsibility of its failure to issue proceedings earlier, as it should have done, over three years ago.

(8) I agree that in considering this application the court should guard against making decisions with the benefit of hindsight. In her statement Ms Ransley observes ‘With the benefit of hindsight criticism can be formulated. Is the service and support provided to [K] optimal, [K] has been given what all children in care are, but for [K] like 30 percent of young people, her experience has been sub-optimal due to issues inherent in the care system. These issues are experienced by children subject to an order and those who are not.’ What this does not acknowledge are the facts of this case; the unacceptable delay in issuing proceedings, the consequent uncertainty which increased the risk of placement breakdown and the failure to properly assess and support K.

 

The Judge assessed the appropriate level of damages for K as being £17,500.

 

Statutory charge

 

The statutory charge is not very exciting, but I need to talk about it here, because it is important. The statutory charge is the term given where as a result of  free legal representation, someone obtains money through a Court order, and has to use that money to repay the cost of their legal aid. It usually occurs in divorce, and makes a lot of sense. If someone racks up a legal aid bill of £20,000 and as a result of their divorce gets £250,000 it makes perfect sense that the legal aid should be repaid out of that money, rather than the taxpayer footing the bill.

Up until fairly recently, this didn’t affect people in care proceedings. Legal aid for care proceedings is non-means non-merit  (which means that even a millionaire would be entitled to free legal advice and representation) and parents didn’t get any money back at the end.  But now that Human Rights compensation for bad behaviour by a Local Authority is a thing, the change to the Statutory Charge which means that it applies to such compensation is a big deal.

£17,500 of compensation for K is a decent amount of money, and intended to be compensation for what she has gone through in her life as a result of the human rights breaches the Court has found. But before she gets any of that money, she has to pay back the legal aid agency for the cost of her care proceedings AND the cost of her human rights claim.  That’s probably going to leave her with nothing.

Many of us were hoping that you could box off the human rights claim separately, which would be much less, and possibly an amount of money that the Court might order the Local Authority to pay. A human rights claim probably costs about £2,000, compared to the £10-20,000 of care proceedings  (remember that the legal aid bill covers barrister’s fees and expert fees too).

So, here are the options that the Court has :-

  1. Make no orders about costs, and know that almost the entire compensation package goes to the legal aid agency rather than the child or the parents.  Michael Gove is the person who benefits, not the person who actually suffered the human rights breaches.
  2. Make an order that the Local Authority pay the costs of the care proceedings AND the human rights claim. That means that the LA are paying out double the amount of compensation. It also makes it difficult to fit with the Supreme Court’s decision on costs in care proceedings, which are that there shouldn’t be costs orders unless the LA’s conduct WITHIN the proceedings has been egregiously bad. The conduct here is BEFORE the care proceedings, so there’s a strong chance that the LA would appeal. That racks up the costs even more, potentially swallowing up ALL the compensation, since really only the Supreme Court can decide how this affects their previous decisions.
  3. Make an order that the LA pay the costs of the human rights act claim. That’s a well-founded costs order and doesn’t cause legal problems. However, it is a small amount compared to the costs of the care proceedings, and may still end up with the child getting only a small amount of compensation.

 

 

The Judge in this case took the third option.

Costs

  1. Mr Hall seeks an order for the LA to pay the costs of the proceedings. He submits the HRA claim has succeeded, the court should be mindful of the impact of the statutory charge and in the circumstances of the case the court should make an order for the LA to pay the cost of the proceedings.
  2. Ms King resists this application. She submits the court should not depart from the general position in family cases that costs are not usually awarded in family proceedings (see Re S (A Child) [2015] UKSC 20 paras 15 and 29). She submits the LA have not taken an unreasonable stance. In any event, the LA should not be responsible for the cost of the proceedings, merely as a device to avoid the full impact of the statutory charge. She submits there are discrete costs concerning the HRA application.
  3. I recognise the financial pressures on the LA and that it is unusual for the court to make a costs order in care proceedings. Against that I have determined that the HRA claim succeeds, I rejected the submissions of the LA and made an award of damages. In the circumstances of this case, where the breaches continued for such a long period of time, I have reached the conclusion the LA should pay K’s costs of the HRA application only, but which will include the full costs of the hearing on 29 March 2016, as the only reason that hearing could not proceed was due to the late disclosure by the LA on that day of relevant documents. I will make no order for costs as between M and the LA.

 

 

 

I do have a fourth solution, but it is hard to use when a human rights act claim has already actually been made. Effectively, if a lawyer believes that the client has had their human rights breached and that compensation might be payable, they open up a brand new pro bono file. This is kept ENTIRELY separate from the care proceedings. Ideally another lawyer deals with the case so there’s no overlap at all.  Not a penny of publicly funded/legal aid money is spent on that file, so any compensation achieved is nothing to do with legal aid at all. The money would only go to legal aid if the care proceedings ended with a “Lottery order” about costs (that’s an order that says in effect, K had free legal aid and would only have to pay for it if she came into a huge sum of money, say a lottery win. These are NEVER made in care proceedings, because legal aid for them is non-means, non-merit – even a millionaire qualifies)

Ideally, under this pro bono file, the lawyer writes to the LA a pre-action protocol letter setting out the alleged breach and giving a figure that their client would be prepared to settle for. If the case settles, the costs are minimal and could be bundled into the settlement. The client gets the money, the lawyer gets paid for the work they’ve done, the LA don’t incur a costs order of tens of thousands.  If the case doesn’t settle, the lawyer has to decide whether to run it as effectively no-win no-fee, or to make an application for public funding knowing that the stat charge will bite on their client.

None of this should be necessary BECAUSE the Statutory Charge just plain and simple should not apply to human rights compensation cases, and particularly not to ones that arose out of care proceedings. Making someone pay out of their compensation for care proceedings that a millionaire would have got for free, and they only have to pay a penny BECAUSE their human rights were breached is just plain unfair and wrong. I don’t see that changing until the Press get outraged about the unfairness of it  or Michael Gove gets JR-ed on it.  Or perhaps a LA appeals a costs order for the entireity of the costs and the Minister gets added as an intervenor on the appeal.

 

 

*Addendum, solution number 5.

 

Judge smiles very clearly and obviously at counsel who had been making the HRA claim and invites them to withdraw it. If so, delivers judgment and says within it that IF had been asked would have found breaches and IF asked about quantum, would have said £x. Pauses after judgment, gives parties a small adjournment for discussions to see if any applications need to be made arising from the judgment, or whether for example an offer might be made an accepted. If Judge told that nothing arising, simply makes no order for costs. Stat charge doesn’t bite because no order for compensation made, and any compensation was achieved in that short adjournment for which nobody charges the Legal Aid Agency a penny for their time. If Judge is told that an application to revive the HR claim is made, then so be it, the LA will likely feel the full force of a costs order because they were too dumb to take a hint.

Fast and the Furious – Tunbridge Wells Drift

 

 

Okay, this piece isn’t really about Vin Diesel and The Rock racing cars around the backstreets of Kent. But it is about a case about  Medway (which is sort of near Kent) weren’t fast, and as a result the Judge got furious. And where the central issue was drift.  Section 20 drift, y’all.

(*Tunbridge Wells have done nothing wrong in this story – I just needed a “T” town for the Tokyo Drift reference. )

 

I’ve been writing about section 20 drift for a while, but perhaps given that this is a really strong judgment, it is worth a quick recap.  The Human Rights Act compensation to be paid to the mother by Medway was £20,000 and to the child also £20,000.   (And possibly costs to follow – see bottom of this post for an explanation of that)

 

 

  • Without a court forum it was solely the local authority that empowered itself to make decisions about a child unlawfully held by them, with simply a check in the form of the IRO system on the progress and welfare of a child in local authority care (and which system I consider further below).
  • T drifted in foster care without any clear focus on her contact, her need for therapy or her and her Mother’s rights to family life. I find shocking the inattention to contact, such that Medway Council is not even able to specify clearly what has and has not taken place, but is obliged to admit to serious gaps in contact and flaws in its support for this essential aspect of their family life. There would not only have arisen a duty under s34 Children Act 1989 to promote contact if an ICO were in place, but both T and Mother would have had a voice, legal advice and representation within proceedings to pursue their concerns about her accommodation, care plan, therapeutic needs and contact and Medway Council ‘s care of T would have been subject to the necessary judicial scrutiny applying the relevant careful tests relating to the threshold and welfare criteria set out in the Children Act to ensure interference with their family life was in T’s best interests, necessary and proportionate.

 

 

Section 20 is the power under the Children Act 1989 for children to be in foster care without a Court order – it is categorised as a voluntary foster placement. Typically, the parents are asked to consent, or even they come forward and say that they can’t manage, aren’t coping or the child needs a break.  Section 20 can be a really useful tool – if there’s genuine cooperation between the parents and the social worker, nobody wants to force the case into Court and up the stakes.

Where it starts to get problematic, as we’ve seen from a number of cases over the last three years, is where the consent and cooperation isn’t that genuine but that parents either don’t understand or have explained to them what section 20 really is and that they can say no, or are pressured/cajoled/threatened into agreeing, or in the latest spate of cases where a Local Authority is relying on a parent simply not objecting to the foster placement.  There are reasons why a parent might not come forward and object – most obviously that without access to a lawyer or it being explained they don’t even know that they can, or they are afraid of rocking the boat, or they are having faith that the system will work and do the right thing, or that they are intimidated that if they object then the case will be rushed off to Court and that this will be bad for them.

So ultimately, section 20 drift cases are about an imbalance of power – the State is taking advantage of the fact that parents without access to a lawyer won’t object or will agree to section 20.  And so it becomes an alternative to going into Court proceedings. Court proceedings are expensive, and involve a lot of work (going to Court, writing statements and chronologies etc) and of course in Court social workers don’t necessarily get things their own way and the Court can disagree with them.  So there can be a temptation, if the parents aren’t demanding the child back, to just keep going with the section 20 foster placement. And this of course is the drift element – these children can wait months or even longer, sat in limbo – nobody has decided whether the child can ever go home or whether the child’s future lays elsewhere, the case just drifts.  By the time the case finally gets to Court, that relationship between child and parent can be hard to put back together, and the problems the parent has may take time to address and it can be harder for them to get the child back.

Section 20 drift, in short, is bad.

It may be happening more as a result of a series of pressures – firstly a general demand within Local Authorities to save money and cut costs (due to significant cuts to their budgets) and secondly the reforms to Care proceedings that mean that more and more is expected to be done before going to Court – there can be a temptation to keep the case out of Court until all of the assessments are done and everything is just perfect. It is a bit of an unintended consequence – which we’re seeing a lot of since the PLO (Public Law Outline) reforms came into being.  This isn’t a problem limited to Medway here, or Brent as in the last reported case, or Gloucester/Bristol where their Judge has really seized the issue.  I’ve worked in a lot of Local Authorities, I’ve worked against a lot of Local Authorities and I’ve seen it all around the country.

 

That’s the background.

On with this case

Medway Council v M &T 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B164.html

 

This case was decided by Her Honour Judge Lazarus  (readers may recall her from the case where a mother tape recorded a foster carer being dreadfully abusive to her https://suesspiciousminds.com/2015/06/03/tape-recording-paying-off/   )

 

When the child T, was five, she came to the attention of Medway Council, and her mother M, was having mental health problems and was detained under the Mental Health Act. Medway placed the child in foster care, but didn’t actually have mum’s consent (she probably would not have had capacity to give it in any event)

 

 

 

  • T was born on 9.1.08, making her 7 years 9 months old now, and just 5 when she first came to the notice of Medway Council. This was due to a referral made on 8.2.13 by T’s school that T was being collected by a number of adults and concerns that Mother may be a victim of trafficking. Coincidentally, within a few days T was placed in emergency foster care, as her Mother was detained in hospital under the Mental Health Act on 11.2.13.
  • It is clear that Mother was too unwell to discuss T’s accommodation and there are no records whatsoever of any discussion with Mother of T’s whereabouts and care until her discharge in August 2013. It is likely, and there is no evidence to the contrary, that there was no proper explanation to her within this six month period, and Medway Council do not suggest there was, albeit I accept that for some of this time she would have been suffering from severe and disabling mental ill-health. There is certainly no document suggesting that there was any agreement by Mother to this accommodation. What Medway Council claims is that this was a different kind of lawful accommodation under s20, until she was well enough to consider T’s accommodation by Medway Council. It was not, and I shall deal with this further below.

 

 

That argument you may recall from the case I wrote about last week, decided by Her Honour Judge Rowe QC  – in which she decided that the power under section 20 needed to be exercised with capacitious consent, and not merely relying on the absence of objection.

 

https://suesspiciousminds.com/2015/10/12/unlawful-removal-of-a-child-compensation-paid/

 

[That’s the one where I used the comparison of a 10 year old assuming that it was okay to eat all of the Penguin biscuits whilst his mum is upstairs because “mum didn’t tell me that I COULDN’T]

 

In this case, T remained in foster care ostensibly under section 20 until care proceedings were issued – the period involved was 2 years and 3 months. She was in ‘voluntary’ foster care rom February 2013 until proceedings were finally issued in May 2015.  The mother had not even known that this had happened until August 2013, some SIX MONTHS after the child was taken into foster care.  Mother and baby are currently together in a specialist foster placement, and I wish them both well.  As the Judge points out, this is the longest reported case of section 20 drift.

 

The Judge went through everything very carefully (it is an extremely well-drawn judgment and would be recommended reading for anyone dealing with such a case – particularly the analysis of damages)

 

The conclusions were :-

CONCLUSION

 

  • For all of the above reasons I find that Medway Council ‘s accommodation of T and her removal from her Mother was unlawful, and as a result I have no need to go on to consider whether it was ‘necessary’ within the meaning of Article 8(2) ECHR.
  • I also find that Medway Council failed to issue proceedings in a proper and timely manner. This was despite warnings from June 2013 onwards. I have not found it possible to understand why there arose the original misunderstanding of the correct legal approach, why the advice given was not followed, why further legal planning meetings were not held until 2015, nor even why proceedings were not issued immediately in 2015 once the matter was looked at again by Ms Cross in January. The period involved is 2 years and 3 months, the longest currently reported in any case reported on this issue to date.

 

REMEDIES – JUST SATISFACTION

A. DECLARATIONS

 

  • T and Mother are entitled to the following declarations:

 

a. The local authority breached their rights under Article 8 ECHR in that they

i. Unlawfully removed T from Mother’s care on 11.2.13;

ii. Failed to obtain properly informed capacitous consent for T to be accommodated, or to consider/assess adequately the question of the Mother’s capacity to consent, at that date or subsequently;

iii. Accommodated T without Mother’s consent between 11.2.13 and 7.5.15;

iv. Failed to inform Mother adequately or involve her sufficiently in the decision-making process in relation to T;

v. Failed to address the issues relating to their relationship and contact between them adequately;

vi. Permitted unacceptable delay in addressing all of the above.

b. The local authority breached the rights of T and Mother under Article 6 ECHR in that they failed to issue proceedings in a timely manner.

 

What were Medway going to do to avoid this in the future?

 

 

  • Ms Cross has set out in her statement a number of vitally necessary improvements to Medway Council’s procedures and performance which I heartily welcome, particularly as this is not the only case where the use of s20 by Medway Council has been of concern (I am aware of at least three such others, including a reported judgment of mine earlier this year). The proof, as they say, will be in the pudding and depends on consistent and rigorous application of these reforms. They are as follows:

 

a. “During the period of January to July 2015 we have reviewed a number of cases where the child/ren are accommodated under S20 and where the child/ren are aged 12 and under. Where required we have issued or are issuing proceedings;. We have begun this process for children aged 12 and over and this will complete by 1st October 2015.

b. These reviews will continue and with immediate effect we have agreed that our Legal Gateway Panel, chaired by the Head of Service for Advice and Duty, Child Protection and Children in Need, will continue to monitor and track children already accommodated under S20 and will in future review all new cases involving s20;

c. The reduction in the use of S20 accommodation is built into all our service and improvement plans

d. We have reviewed how court work is undertaken within the LAC & Proceedings service and going forward will be targeting this work at the social workers who have the most suitable skills for court work;

e. Training has been provided in recent weeks for social workers on legal processes and proceedings, including the issue of s20, and this will continue on a rolling basis throughout the year.

f. We will be holding workshops on the use of S20 in September and October to provide clear guidance and support for Social Workers to ensure they are equipped to deal with any s20 issues arising and that they fully understand how S20 should be utilised and monitored. We will be providing new policies and procedures for staff across CSC in the use of s20. We plan to have these finalised by September 18th and we would be happy to share these with the Court and partner agencies including Cafcass at our quarterly meetings with the Judiciary and other agencies.

g. At monthly meetings between the 2 Heads of service from CSC and the Head of Legal S20 will be a standing agenda item and we will discuss each child who has been accommodated under s20 in the intervening month to satisfy ourselves that the appropriate management oversight and case related activity is in place.

h. I am in discussion with the Head of Adult Mental Health services to organise workshops for staff on capacity issues and deprivation of liberty (DOL’s) awareness. I hope that these workshops can be completed by 01.11.2015.

i. We have an adult mental health duty social worker located within our advice and duty services to advise and assist on those cases referred to us where the parent/s have a mental health or learning disability.

j. We are organising PAMs training for a number of staff so that we have more staff located within CSC who are able to assess parents with a learning disability in order that we can improve the service provided to them. We hope that this will have taken place by 01.12.2015.

k. We have increased management capacity and have formalised an Operational Manager post in each of the service areas. They will have direct responsibility for ensuring that court work proceeds in a timely manner and that work is of a high standard

l. S20 cases will also be reviewed at a monthly Permanence Panel wherein the permanence planning for LAC children is reviewed. This panel, chaired by my HoS colleague has attendees from Legal services, the Principle IRO and the adoption service.

m. As a result of this review I am also working with my colleagues to review the S20 form that parents sign and we are introducing a checklist for staff when seeking S20 accommodation to ensure that they address all the salient issues with parents. These issues will include considering the parent/s needs arising from a mental health/learning disability. These reviews will have completed by 31.08.2015 and the updated forms will be in use thereafter.

n. Finally the reviewing service have implemented a new review whereby the allocated IRO will review all cases between the LAC review (ie every 6 weeks) to ensure that all planning is on track. Where required concerns will be escalated to the appropriate Operational Manager and if there is still no resolution to the relevant Head of Service.”

 

 

Now, an important check and balance on social worker’s actions or inactions is supposed to be the Independent Reviewing Officer system. The IROs are supposed to hold social workers to account and make sure that things like this don’t happen.  There are regular reviews of children’s cases when they are in foster care. What ought to have happened at those reviews was that the IRO should have got the social workers to commit to either a plan of short assessment and then review the outcome, or make a decision to return the child to mother’s care, or make a decision that the child couldn’t go home and make the Court application to have the child’s long term future resolved. That didn’t happen.

 

LOOKED AFTER CHILDREN REVIEWS & INDEPENDENT REVIEWING OFFICERS

 

  • Ms Dunkin’s statement is helpful in its analysis of the history and the role of the Independent Reviewing Officers (IROs). They are supposed to perform a crucial role monitoring the care of Looked After children by reviewing and improving care planning and challenging drift and delay.
  • It is highly concerning that there have been five IROs in the last two years before proceedings were issued.
  • There was no IRO allocated until 18.3.13, five weeks after T was accommodated, so she was therefore not afforded a review of her care within 20 days of her accommodation as is required under the IRO Handbook and Placement Regulations. By the end of May that IRO is recorded as being on long term sick leave, and this is considered to be the reason why there is no minute of the first LAC review available.
  • Every LAC review minute inaccurately records/repeats the date of T’s accommodation as having taken place a month later than it occurred.
  • I commend the second IRO LC for correctly requiring a legal review of Medway Council’s position not to take proceedings (11.6.13), however despite it not having taken place by the next LAC review that LC conducted there then began the series of failures by LC and each subsequent IRO to challenge the Social Worker and team manager and director of services about failing to follow the clear recommendation initially made in June 2013.
  • No subsequent LAC reviews (18.9.13, 17.4.14, 8.7.14, 25.11.14) made any further clear recommendations as to parental responsibility, legal status or the use of s20 although the issues are mentioned, save to repeat (presumably by cut and paste as opposed to direct engagement with the issue) the same paragraph that set out the original recommendation of 11.6.13. By 8.7.14 what is added is a recommendation to seek legal advice with a view to securing T’s permanency. I am concerned that this betrays that the review process and LC failed to recognise both the full range of T’s needs and her and her Mother’s rights to family life, and had moved on simply to consider how to regularise what had by then become the status quo, T having been in foster care for almost 18 months at that date. This is particularly worrying as that LAC review meeting also demonstrated Mother’s vulnerability: she was accompanied by an extremely domineering ‘friend’ who described herself as an ‘auntie’ (and whom the Poppy Project is concerned may have had some involvement in Mother’s exploitation), and which led to a decision that all future meetings must be conducted with Mother alone.
  • Contact is touched on in the LAC reviews, but no clear picture or recommendation emerges. For example, the review of 17.4.14 mentions the reintroduction of contact I have already referred to, but little further is pursued. At the same meeting the problem with T’s passport and therefore the implementation of respite care during her foster carer’s holiday was raised and not addressed adequately, let alone robustly.
  • Overall, it is clear that although the fundamental fault lay with Medway Council by its social work and legal teams, the IRO process failed T, and by extension her M, by frequent changes of IRO and each one failing to rigorously apply themselves to the outstanding issues with attention or subsequently following up Medway Council’s failings, and if necessary escalating the issue. Ms Dunkin rightly concedes that previous IROs were not robust enough in this respect.
  • The statutory provisions, regulations and the guidance in the IRO Handbook covering the function and performance of IROs has been carefully reviewed elsewhere (see for example A & S (Children) v Lancashire County Council [2012] EWHC 1689 (Fam) at paragraphs 168-217 in particular). I do not propose to make specific declarations in relation to this aspect of the case. No such declarations are sought, and the appointment and management of IROs falls to the relevant local authority in any event. Additionally, I take into account that the correct recommendation was made in June 2013 and subsequently repeated, albeit it was not followed up adequately or at all, and was ignored by the local authority from the outset.
  • Ms Dunkin confirms that since October 2014 there has been a ‘root and branch review’ of the IRO service: immediate allocation of an IRO, with 90% of reviews now on time; improved IRO requirements and monitoring; performance and training audits with areas of improvement requiring action within a set timescale; direct input by IROs onto the electronic system at Medway Council so alerting team managers to implement their own quality and performance processes; shortened timescales for escalating challenges with a 20 day period before it is referred to the Director of Children’s Services; and mid-way reviews between LAC reviews enabling the IRO to check on progression of care plans and recommendations. Ms Dunkin as Principal Reviewing Officer now sits on the Legal Gateway Panel, resource panel and permanency panel.
  • Again these are welcome and necessary improvements, but their effectiveness will depend upon rigorous application of those improved practices.

 

 

 

On the issue of costs, we have a peculiar situation at present, where if a parent follows the law which is to make the Human Rights Act compensation claim within care proceedings, the Legal Aid Agency (the Government department who pay for the ‘free’ legal representation of a parent within care proceedings) will take all of the compensation to cover the legal costs, and the parent or child would only get anything left over.  That pretty much sucks.  Is there anyone who thinks that it is the Legal Aid Agency who should be compensated for what was done to mother and this child? Of course not.

 

So, apparently there are moves afoot to reverse this fairly recent and frankly moronic policy, and the Judge reserved the issues of costs until then.  If the policy doesn’t change, I’d expect an order that Medway also pay mother and T’s court costs, so that the compensation award goes to the mother and T rather than to a Government agency.

 

While I have assessed this award, I am asked for the time being not to order its payment nor to consider costs. This is at the request of the Official Solicitor who is currently investigating the most appropriate way to manage such an award for a protected party within care proceedings given that this is an award properly made within care proceedings (cf. Re L (Care Proceedings: Human Rights Claims) [2003] EWHC 665 (Fam)) and Mother is rightly in receipt of non-means and non-merits tested Legal Aid, but where concerns exist that the Legal Aid Agency may intend to take steps purporting to claim the whole costs of Mother’s representation in these care proceedings from that award. I shall therefore deal with the issue of ordering payment and costs at a later date.

 

 

The Judge here also considered the issue that I raised in the Her Honour Judge Rowe case, as to whether a very short piece of section 20 accommodation if the parent is unable to care for the child and one is establishing whether that’s a really short period  (i.e mum goes into hospital overnight, but the next day is released with medication and is fine) might be warranted – because the alternative is for the mother to be sectioned and on the same day social workers go to Court to get an Emergency Protection Order which would be awful if she happened to be released the next day.

 

It could be argued that where there is such an emergency as this, and indeed as in the Brent case, that it may be reasonable to wait for a short period without taking proceedings in order to review the parent’s progress in hospital in the event that their ability to care for their child might return. This would then avoid the stress and expense of time and resources in bringing unnecessary proceedings that would then have to be withdrawn. I concur with HHJ Rowe’s analysis that a month in the Brent case was too long. It may be reasonable, in rare and very clear cases where such enquiries could be reasonably considered as likely to bear fruit, to wait for at most a day or two while the local authority explored the possibility of an imminent return to a parent’s care. I bear in mind here that both in logic and principle such a period should be less than the time limit of 72 hours which is stipulated in the Children Act as applicable to PPOs. However, otherwise, save perhaps for the first few hours while the child’s status is considered, and advice sought and steps taken to issue proceedings, it must be right that proceedings are brought as immediately as possible for all the reasons discussed above.

 

I think that’s really sensible and pragmatic.  Like the Brent case, this is not legally binding precedent on anyone other than the parties who were in the case, but it would certainly be persuasive in such cases and equally a Local Authority who go beyond that 72 hour period are badly exposed to a Human Rights claim of this type.

Unlawful removal of a child, compensation paid

 

Her Honour Rowe QC considered this case, where a Local Authority removed a child and placed the child in foster care when at the time, the mother knew nothing about it.  It is a decision by a Circuit Judge and thus not any new binding law, but it is interesting and potentially important nonetheless.

 

Re AS (unlawful removal of a child) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B150.html

In this case, both the mother and father had mental health problems. On the 9th October 2014, the mother suffered a significant episode of mental ill-health. She arranged for a neighbour to look after her son who was aged 9, and to take him to school. She called an ambulance to take her to hospital.

She was admitted to hospital and was detained under section 2 of the Mental Health Act.  She was not told until 16th October by letter (!) that Brent had removed her son from the care of the neighbour, whom they considered unsuitable on 9th October, using section 20 of the Children Act 1989.

Brent issued care proceedings on 11th November, and an ICO was made on 13th November 2014.  The child was thus in foster care on “section 20” from 9th October to 13th November, although mother had not consented, had not been asked to consent, and for at least some part of that time would not have had the capacity to consent.

It was not really in dispute that if Brent had sought an EPO or ICO at that time that the Court would have made one, the dispute was whether they had the legal authority to keep the child in foster care without an informed and capacitous consent from mother.

 

The argument from Brent hinged around the wording of section 20 (1) (c)

 

20 Provision of accommodation for children: general.

(1)Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of—

(a)there being no person who has parental responsibility for him;

(b)his being lost or having been abandoned; or

(c)the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.

And on a technical basis, they might be said to be right. The Act itself never mentions a parent consenting to section 20.  The latter passages of section 20 make it plain that the LA cannot provide a child with section 20 accommodation if a parent with Parental Responsibility OBJECTS.  In practice therefore, most Local Authorities would seek the parents consent and for the parent to sign a consent form.  Brent’s argument here was that they didn’t need a consent, they just needed the absence of an objection. There was no objection, therefore the child was validly accommodated under s20(1)(c)

 And on the bare words of the statute, they are right.  However,  it would be a really technical defence to run, and it is not very surprising to me that it did not succeed.  If mum wasn’t asked or told, how could she object? She didn’t know it was happening. And if she HAD objected, Brent could have argued that she didn’t have capacity to object.

There’s quite a big difference between getting someone’s consent, and saying that something is okay because they didn’t object. Especially if they didn’t know.  It is a bit like being ten and saying “Well, mum didn’t tell me that I COULDN’T eat nine Penguin bisuits whilst she was upstairs”

OR

If for example, I have the opportunity for a canoodle with Keira Knightley, I would not expect to be able to tell Mrs Suesspicious Minds that it was perfectly fine because she had not explictly objected to my doing it.  Particularly if I didn’t tell her in advance that it was a possibility, thus giving her the chance to object.  I think that Mrs Suesspicious Minds would be absolutely entitled to take the view that this is the sort of thing that I’d need to raise in advance and that only with her explicit consent (which would not be forthcoming) would it be okay.  [I’d best make it plain that this is an illustrative hypothetical example only, and that I would never put myself in this situation. Not with Keira Knightley.  With Rachel Weisz?  No, I still wouldn’t. Honestly. ]

24. …I accept that the removal of AS took place in good faith and that removal would almost certainly have been sanctioned by the court had the local authority applied for an EPO, however for the reasons that follow I conclude that the removal was unlawful.

  1. The removal of a child from his parents by a local authority is a fundamental interference with the right of the parents and child to family life, and can only be carried out if the removal is “in accordance with the law”. The framework for the removal of a child is set out in the CA 1989, and with apologies as the principles are so well established I have set them out above.
  2. Both Hedley J and Munby J, as he then was, said clearly in the cases cited above that in the absence of consent, a child can be removed only in the circumstances set out in s38, s44 or s46 CA 1989. These provisions appear under Part IV and Part V, CA 1989. Each provision contains stringent safeguards intended to ensure that a removal is lawful. In particular: a. Each section refers to the s31 threshold criteria, requiring either that there are reasonable grounds to believe that the threshold criteria are met or, in relation to emergency provisions, that there is reasonable cause to so believe;b. Whilst removal under s46 (police protection) does not require prior judicial approval, the power to remove is strictly time limited to a maximum period of 72 hours. The police are under a duty to notify both the relevant local authority and the parents as soon as practicable of the steps taken;c. Removal under either s38 or s44 requires prior judicial approval;d. Even with prior judicial approval, an emergency protection order is strictly time limited so that any longer term sanction for continued removal follows an application for a care order and a further appearance before the court where all parties can be represented, where a Children’s Guardian will have had time to make initial enquiries and where all parties will have had an opportunity to consider the relevant evidence and will be able to make full submissions to the court, which can hear evidence if necessary.
  3. The provision of accommodation for children by the local authority is dealt with in Part III which, as Hedley J confirmed, addresses “Support for Children and Families”. As already cited above, Hedley J made clear that the emphasis in this Part is on partnership and “involves no compulsory curtailment of parental rights“. Self evidently the whole of s20 falls within Part III, and Hedley J made no distinction between the provision of accommodation under s20(1) and the provision of accommodation under s20(4). His judgment referred throughout to s20 as a whole.
  4. In the case of R(G) v Nottingham City Council referred to above, the President re-emphasised the clear principle that save perhaps in exceptional wardship cases (where in any event a High Court Judge would need to give prior judicial authority) in the absence of the agreement of the parent, removal of a child could only be achieved by the statutory routes in ss38, 44 or 46. On the facts of the Nottingham case, the local authority plainly considered that the mother was prevented from providing her baby with suitable care, just as the London Borough of Brent considered that this mother was prevented from providing AS with suitable care. If Mr Poole were correct in his analysis of s20(1)(c), then Nottingham City Council would have been entitled lawfully to remove the baby under the same provision. The President concluded without hesitation that the removal was unlawful.
  5. s20(1)(c) contains no requirement for the threshold criteria under s31(2) CA 1989 to be satisfied on any basis, even reasonable cause. If Mr Poole were correct, then a local authority could, on its own assessment of whether a parent was prevented from “providing a child with suitable care”, remove that child without any reference at all to the threshold criteria. The parents would have no forum in which to contest that assessment, and there is no application open to them under the provisions of the 1989 Act to challenge the local authority and seek the return of their child. The child would have no Children’s Guardian. There would be no parameters for the position after removal, there would be no requirement for the local authority to apply to court and there would be no time limit on the duration of the removal. In short there would be no safeguards to mirror those that are expressly included in ss38, 44 and 46. It would seem perverse if a local authority could more easily remove children from their parents in cases where the threshold criteria were not necessarily met than in cases where there were reasonable grounds to conclude that they were met.
  6. There is no authority supporting the proposition advanced by the local authority in this case and, as I have already indicated, that proposition appears to be in direct contravention to the principles established in the cases relied on by the mother.
  7. Finally, the structure of s20 itself is, I conclude, inconsistent with the proposition that parental consent is required where a local authority is acting under s20(4) but is not required where the local authority is acting under s20(1)(c). s20(7) prevents a local authority from accommodating a child if a parent objects and s20(8) permits anyone with parental responsibility to remove a child from accommodation. The important point is that both of these provisions apply to accommodation under “this section” ie s20 as a whole; they do not distinguish between accommodation under s20(1)(c) and s20(4).
  8. For all of these reasons I find that the removal of AS from his mother was unlawful. I therefore do not need to go on to consider whether the removal was “necessary” and therefore in accordance with Article 8(2) ECHR].

[I think that I’d probably distinguish the Nottingham case – in that case, mum DID know that the baby was being removed and she DID object. So clearly the social workers in the Nottingham case couldn’t have been using s20(1) (c) as a legal basis for removal. Nevertheless, THIS Court has found that s20(1) (c) requres active capacitious parental consent, not mertely the absence of an objection]

The question then arises about delay in issuing proceedings

If I find, as I have, that the removal of AS was unlawful, I am then asked to find that the local authority failed to issue proceedings in a timely manner, in breach of the mother’s Article 6 ECHR rights. Since the initial removal of AS was unlawful, it follows that until the local authority issued proceedings on 11 November 2014 and secured judicial approval for continued separation on 13 November 2014, AS was being kept separate from his mother unlawfully. The local authority did not issue proceedings in a timely manner. I was unable to understand the reason for this delay, especially given that at the legal planning meeting held on 13 October 2014 the local authority decided to issue care proceedings and the application itself, though issued only on 11 November 2014 was actually dated 7 October 2014.

The LA were ordered to pay £3,000 in compensation and £750 in costs.

The LA did try to escape compensation by saying that the declaration that they had breached mother’s human rights and their apology was sufficient. Sadly for them, they had tried one of those “modern” apologies, where the person says “I’m sorry that X made you feel bad” rather than “I’m sorry that I did X, that was wrong of me”

  1. The local authority reassured the court that it had at all times acted and will continue to act in good faith and with AS’s best interests at heart; no party suggested otherwise. Further the local authority submits that if I do find a breach, then the making of declarations together with the local authority’s apology to the mother together amount to just satisfaction. The local authority resists any award of damages or costs.
  2. For the mother, Miss James points to the terms of the apology and submits that it is not really an apology. The local authority, in counsel’s position statement, says “the Local Authority does not accept that its actions breached the mother or AS’s article 6 or 8 rights…The Local Authority offers a sincere apology to the mother for any upset that she feels LB Brent has caused her.” Miss James makes, I find, a good point. Miss James further makes clear the fact that the mother did not bring these proceedings for financial reasons; she was and has throughout remained upset and distressed about the manner of AS’s removal and she wants to make sure that this could not happen again to another child.

 

 

I think I might have tried another line – I’m not sure it would have worked either, but I would have considered it. On 9th October, the LA or any other LA, could have had no idea whether mum might be suffering from a really short episode of ill-health and be home the next day, or whether she might be ill for six weeks or more.  As they wouldn’t be able to rely on mum having capacity to sign a s20 consent  (pace Hedley J’s decision) and they can’t rely on s20 (1) (c) if the Judge is right here, that puts any LA where a mother has an episode of mental ill-health which might mean them being hospitalised in a position where they HAVE to seek an EPO / ICO.  That might in itself not be a terribly healthy thing for mum to hear at a time when she is getting treatment, and might wildly escalate a situation which could, after all, have been resolved the very next day with mum getting discharged with a change in medication.

 

The ultimate thrust of this judicial decision is to drive LA’s to issue care proceedings the moment that a mother or father providing care for a child is taken to hospital or has an episode of florid behaviour.  That might led to a number of care proceedings being issued prematurely, and also to a situation where mothers feel undermined and criticised by professionals just at a time when they need support and a working relationship.

You might say that making use of s20(1) (c) as a very short term holding position so that the child can be cared for whilst it is established whether the episode of mental ill-health is very short-lived and can be stabilised in a day or two, might be much more illustrative of working in partnership than dashing off to Court at a time when mother is unwell, stressed and anxious and where she won’t have capacity to instruct someone to fight the case, won’t have an Official Solicitor to represent her, may not actually be allowed by the hospital to be present and will be told that a Court are ruling that she presents a risk to her child EVEN THOUGH she has recognised that she is unwell and asked for help.

 

(I’d have to concede that in this particular case there are some major problems with that argument…firstly taking the child away from a neighbour who mum has asked to care for the child and who is willing to do it doesn’t really help my argument here, and secondly that NOT TELLING mum for a week doesn’t help in the slightest.  I’d mean more in cases where no alternative care provision has been made and mum is told immediately or as soon as practicable. )

 

But ultimately the Court interpreting that s20 (1) (c) requires active parental consent also puts LA’s in a position where they’d have to go to Court for a parent who is in a road-traffic accident and who is in a coma. The child can’t be accommodated under s20 (1) (c), the parent can’t consent. If the parent hasn’t got someone else who steps in to look after the child, how does this work?   You couldn’t conceivably argue that the child is at risk of harm from the parent, but what are you going to do?   [Accommodate, and take the chance of being sued afterwards is probably the answer]

Unfortunate and woeful – Local Authority failings

 

This is a High Court case in which the Judge (Keehan J) was very (and rightly) critical of the Local Authority, including criticism that when they were asked for explanations of their conduct prior to and during the proceedings those explanations were not satisfactory and amounted to not much more than attempts to defend the indefensible.

 

Northamptonshire and DS 2014

 

http://www.bailii.org/ew/cases/EWHC/Fam/2015/199.html

 

The case ended with a child, DS, being placed with his maternal grandparents in Latvia.

 

It began, as cock-ups so often do, with a section 20 agreement. There were some legitimate concerns that DS would be at risk in the care of his mother and his mother was asked to agree to place him in ‘voluntary’ foster care. This happened when he was 15 days old.

 

The Local Authority did not properly think about care proceedings until five months later, and even worse than that, having decided that care proceedings were the right thing to do, did not then issue them until five months after that.

 

The care proceedings were plagued by delay, most if not all being ascribed to the Local Authority, ending up with a child spending nearly two years in foster care when there were grandparents who were eventually able to care for him.

 

The Guardian and mother issued claims for Human Rights damages on behalf of the child, and the LA by the time of the final hearing were accepting that they had violated the child’s human rights in all of these human rights claims:-

 

 

(a) The local authority failed to take any protective action to safeguard the child despite having concerns that he was at risk of suffering significant harm between 15 and 30 January 2013, in breach of his article 6 and 8 rights.

(b) Whilst the child was accommodated pursuant to section 20 CA on 30 January 2013, a decision to initiate proceedings was not made until 23 May 2013 and an application for a care order was not made until 5 November 2013. Over this period of 11 months the child was without access to any independent representation of his welfare interests and had no access to any remedy or recourse and no person was exercising parental responsibility for him, in breach of the child’s article 6, 8 and 13 rights. *

(c) The local authority, by its acts or omissions, caused or contributed to a series of delays in the filing of necessary evidence during the course of the care proceedings and the final evidence filed for hearing in October 2014 was inadequate and incomplete, in breach of the child’s and mother’s article 6 rights.

(d) The delays and general mismanagement of the case by the local authority has been seriously prejudicial to the child’s welfare and the child’s and mother’s ability to enjoy a family life with a member of his extended family prior to November 2014, which may have irredeemable consequences for the child’s future welfare and development. Such failures were in breach of the child’s article 8 rights.

(e) The child and mother were subject to a high turnover of social workers and locum social workers with conduct of his case file leading to a lack of cohesive, comprehensive management and care for a significant period of time and in breach of the child’s and mother’s article 6 rights and prejudicial to their article 8 rights.

(f) The local authority failed to organise contact between the child and his mother in accordance with an explicit order of the court and the advice of the Children’s Guardian for a significant period of time and poor organisation and communication by the local authority led to various sessions of contact being cancelled. Such failures were in breach of the child’s and mother’s article 8 rights.

 

 

*you don’t often hear of article 13 rights, but it was a good call in this case:-

 

Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

 

There wasn’t an effective remedy until the LA issued the care proceedings that should have begun in February at worst, but instead started in November.

 

A package amounting to £17,000 was agreed by the Local Authority and approved by the Court.

 

Looking at some of the particular criticisms made by the Court:-

 

 

Inexperience of the worker and delay in issuing

 

 

I cannot begin to understand why an inexperienced social worker who was not familiar with care proceedings was allocated as a social worker for a 15 day old baby. I do not understand why it took until August to provide her with support or why senior managers did not intervene in this case. It is wholly inexcusable for a local authority to take three months to decide to issue care proceedings in respect of a very young baby and then a further five months to issue care proceedings. The fact that the parents are Latvian and that close family members lived abroad, provides no explanation less still an excuse for the extraordinary delay in this case.

 

 

The changes in social worker

 

I appreciate that social services’ departments have difficulties recruiting and retaining social workers but it is deeply worrying that over the course of these proceedings DS has been allocated no less than eight different social workers. It is evident to me that neither the social workers, nor the senior managers at Northampton Children’s Services Department had DS’s welfare best interests at the forefront of their minds. Worse still they did nothing to promote them. Their chaotic approach to this young baby’s care and future life was dismal.

 

 

The section 20 agreement

 

The use of the provisions of s.20 Children Act 1989 to accommodate was, in my judgment, seriously abused by the local authority in this case. I cannot conceive of circumstances where it would be appropriate to use those provisions to remove a very young baby from the care of its mother, save in the most exceptional of circumstances and where the removal is intended to be for a matter of days at most.

 

The accommodation of DS under a s.20 agreement deprived him of the benefit of having an independent children’s guardian to represent and safeguard his interests. Further, it deprived the court of the ability to control the planning for the child and to prevent or reduce unnecessary and avoidable delay in securing a permanent placement for the child at the earliest possible time.

 

 

Whether the s20 ‘consent’ was really meaningful consent

 

On 30 January the local authority concluded that DS was at risk of harm in the care of his mother and secured her agreement to him being placed with foster carers. I question how effective that consent was when it was sought without the mother having the benefit of an interpreter.

 

And overall

 

The catalogue of errors, omissions, delays and serial breaches of court orders in this matter is truly lamentable. They would be serious enough in respect of an older child but they are appalling in respect of a 15 day old baby. Each day, each week and each month in his young life is exceedingly precious. Where so young a child is removed from the care of his mother or father his case must be afforded the highest priority by the local authority.

 

 

 

None of this is good. It is, in fact, deeply bad.

 

Critics of the family justice system, and there are many, are entitled to point to a case like this and say that this is what goes on. The parents in this case, and the child in this case, were badly let down by professionals and there were systemic failures to put things right.

 

It is only a small crumb of comfort that this was a case in which the Judge dealing with it was prepared to be tenacious and forensic about those failures, with a view to preventing them happening to other unfortunate families.

 

As the Judge says at the end

 

I trust that the events of the first 23 months of DS’s life will not have a detrimental impact on his future development and his emotional and psychological well being. There is a real risk they will do so.