This is a decision of a Circuit Judge, so not binding, but illuminating as heck.
M and N (Children : Local authority gathering, preserving and disclosing evidence)  EWFC 40 (1 June 2018)
It revolves around an investigation into a child who was two months old and how they sustained bruising to the neck and a fracture to the clavicle.
The social worker interviewed the parents, took handwritten notes and later produced a typed note. The LA case was that neither of the explanations for the injury offered by a parent (a trip and fall whilst carrying the child, or a bump in a car) accounted for the injuries, and the experts agreed.
On later enquiry within the care proceedings it emerged that the handwritten notes were used to produce that typed note two weeks later
- Social worker, (SW1), was charged with investigating the matter on behalf of the local authority. SW1 spoke with the mother on 22nd September when she was given the seatbelt explanation. On 25th September, the Monday, SW1 visited the parents’ home and met with the mother and the maternal grandmother. At this meeting, she was given specific details of the fall explanation. On 26th September, the following day, SW1 visited M at her school. Each of these meetings need further expansion but before doing so, I must comment on the way the meetings were recorded.
- During her evidence SW1 referred to her formal recording of the meetings which was set out in case notes and notes prepared for the purpose of the local authority section 47 report. Both sets are very similar as there was clearly a lot of copying and pasting from one to the other. Significantly, the formal notes were largely made up on 9th October, some two weeks after the meetings took place. When questioned by Miss Mallon about the potential for these notes being inaccurate because of the delay, the social worker was adamant that they were accurate as she relied on her memory, supported by her handwritten notes taken at the time. The cross-examination was highly relevant as there was a material dispute as to what was said during the meeting on the 25th.
The handwritten notes were duly requested and produced. Were they good? My good friends, they were not. Did they show an accurate record mapping clearly onto the typed version? My good friends, they did not.
- The handwritten notes had not previously been disclosed by the local authority and did not form part of the bundle. At the conclusion of SW1’s evidence, the court asked her if the notes existed and if they could be produced. It transpired the notes did exist and they were produced the following day and circulated. The contemporaneous notes comprised seven pages of handwritten material. It is difficult to overstate how unprofessionally prepared these notes were. They were largely undated, they failed accurately to recall who was present, much of the handwriting is illegible, they were in large part disjointed and had to be translated by SW1 who gave further evidence but despite their unsatisfactory condition, the notes were illuminating.
- Until the notes appeared, no plan of the living room of the family home had been prepared. The notes, however, contained a sketch plan of the room with a faint line which the social worker confirmed denoted the path M was taking when it was alleged that she had tripped falling on to N. The path is clearly towards N’s head and right shoulder. It is entirely consistent with the evidence given by the mother and the grandmother and suggests a graphic explanation for how M could have placed her knee on N’s right shoulder causing bruising to her neck but not to the remainder of her torso.
- The significance of this is twofold. Firstly, the fact that the mother was denied this crucial contemporaneous recording of what she said four days after the event was to deny her the opportunity of supporting her version of events with crucial evidence and left her to rely on her memory many weeks after the event. Secondly, it deprived the experts of corroborative evidence to explain how the neck could have been bruised but not the body.
- 16. The handwritten notes contained a record of SW1’s meeting with M. They are as illegible and disjointed as the other notes but start with the words, “Naughty step”. SW1 was unable to explain why these words appear and could only speculate. The note contains a record of the child saying something and then correcting herself and concludes with the words, “Said never tripped/fell on to N/mat”.
- 17. As a result of this meeting, it is claimed there is formal record supporting the local authority’s case that M has denied falling on to N. This has been taken up by the experts who have used this in support of their opinion that the event did not happen. This is not a criticism of the experts as they are entitled to assume M was interviewed in a professional manner. Unfortunately, she was not. During the social worker’s evidence she said that she had been ABE trained. If this is the case, I have grave reservations as to the quality and effectiveness of that training.
Ticket for one to the Burns unit please. Oh, that’s a deep burn.
- On the third day of the five day hearing the local authority took stock of the evidence and, quite rightly, concluded that there was an unrealistic prospect of establishing threshold and asked the court for permission to withdraw its application. The court ordered the local authority to make its application formally by way of C2, supported by a child-in-need care plan. These have been filed and the children’s guardian has had the opportunity to consider the way forward.
- My analysis is as follows. If N had been injured by her seatbelt, she would have woken up and cried. She did not. It is medically implausible that this event caused the injury and, in my judgment, it did not.
- There is unanimity between the experts who attended court that N could have been injured in the way she was by M’s knee landing on her clavicle. I accept the evidence of the mother and the grandmother that this event occurred precisely as they say it did, that M was walking back to N who was lying on her changing mat, that M tripped, that M’s knee was the first part of her body to make contact with N and it did so directly on to her right clavicle. The break was caused by this mechanism. I am entirely satisfied that this was an unfortunate accident and that neither parent was in any way responsible for its occurrence.
- The local authority was right to apply for leave to withdraw its application but we now have a dreadful situation where both children have been separated from their mother and in N’s case her father’s unsupervised care for over six months. The parents have separated and it is unknown how much the stress of these proceedings has contributed to that. M, who we are told cannot understand why she has to live with her great grandmother, must now be told at some point and in the most sensitive way possible that the reason was because her parents had been accused of harming her sister when, in fact, the injury was actually caused by M herself. There is a significant amount of work to do to put this family back together again.
- The local authority has prepared a care plan and I am content that the care plan meets the children’s needs. Having considered the children’s welfare and in doing so having had regard to the welfare checklist, I am satisfied that it is in the best interests of both children for the proceedings to be withdrawn and give leave accordingly.
That’s all desperately sad – what a cost this family has paid for the failure of the social worker to properly record her notes, transcribe them accurately and grasp the importance of what was in them.
Judicial comment on gathering, preserving and disclosing evidence
- I cannot leave this case without making comment on the manner in which the local authority has conducted itself. I have three main areas of concern. Firstly, the gathering and recording of evidence by the social worker was, in my view, wholly inappropriate. The local authority was investigating an allegation of serious child abuse where it was thought possible that an 8-week-old baby had been seriously injured by one or other of the parents.
- 34. In discharging its duties, the local authority could and should, in my view, have kept proper notes in a professional way which would have served as a coherent, contemporaneous record and this did not happen. To compound the problem, the notes were not made up into formal case notes until several weeks after the event, leaving much room for error caused by the inadequate contemporaneous notes and failing memory. If the local authority thought it appropriate to obtain evidence from a 4-year-old child, and it clearly did, it should have followed the ABE guidelines. Failure to do so renders any evidence obtained from the child to be of no value.
- Secondly, I have concerns over the failure of the local authority to present a full picture to the experts. If Dr. Elias-Jones had known the explanation given by the parents days after the event in the manner that it was given to the social worker, this would have changed his opinion. This is clear because when he did understand it, his opinion changed but unfortunately this was four and a half months after he filed his report. Dr. De Soysa in his report dated 27th September, which will have been read by the other experts, reports:
“SW1 had interviewed M with regard to this incident. SW1 informed me that M had no recollection of this event.”
- There is reasonable scepticism as to whether a 4-year-old should have been interviewed at all. However, if she had been interviewed appropriately, and by that I mean in accordance with the ABE guidelines, the outcome may have been very different. It may be that she would have given an accurate account of events which would have meant this whole case could have lasted days rather than six months. One can only speculate. In any event, to have given an account of events of what M said was, in my judgment, irresponsible as the experts could not be expected to question the basis upon which this information had been obtained.
- My third and final area of concern is on the matter as to whether the parents and the children have had the benefit of natural justice in this case and thereby whether their Article 6 rights have been breached by a local authority which is, of course, an instrument of the State. These proceedings are borne out of a serious allegation of child abuse which, if found, would have had a profound effect upon the parents and the way they would be able to care for their children in the future.
- 38. I have already given my comment upon my interpretation of the local authority’s duty of care on gathering evidence but I feel obliged to comment on the local authority’s failure to disclose material evidence in advance of being required to do so during the final hearing. It is clear that the content of the social worker’s contemporaneous notes was material in securing the sea‑change in the professional opinion of Dr. Elias-Jones. The parents should not be expected to have to go on a search to obtain such important evidence which supports their case.
- 39. The local authority should have made this evidence available to the parents and their advisors at the earliest opportunity. It is again speculation as to what effect this would have had on the length these proceedings have taken but it is, in my judgment, worth speculating. For the future, the comments I have made highlight, in my view, that there may be significant areas for improvement in the training the local authority gives to its social workers, particularly in the areas of gathering, preserving and disclosing evidence in care proceedings
If you’re a social worker, now would be a very good time to find your handwritten notes, and have a serious hard look at whether the typed ones capture everything. If you’re a local authority lawyer, ask your social worker on any NAI/CSA case to let you have their handwritten notes. If you’re a parent solicitor or representing a Guardian, ask for those notes.