It is part of the Christmas tradition of Suesspicious Minds that some Local Authority takes an almighty judicial kicking in a published judgment, and this year I’m afraid it is Herefordshire behind the door on the advent calendar. This is a damning judgment by Keehan J
2.The care of and care planning for both these young people by Herefordshire Council has, over the last ten years or so, been woeful.
A & B (care orders and placement orders – failures)  EWFC 72 (30 November 2018)
Herefordshire County Council obtained Care and Placement Orders on two children, A and B in May 2008. At that time, A was 11 and B was 10 (that sounds immediately to me like a highly optimistic order…)
Neither were placed for adoption, and the plan of adoption was abandoned by the Local Authority in September 2009. No applications were made to revoke the placement orders for A, and it discharged on her 18th birthday. An application was finally made to revoke the placement order for B, when she was 17 ½, it being revoked the day before her 18th birthday.
The girls were separated in 2013, and nobody was really able to explain to the Judge why that was
This was followed by a LAC Review held on 13th December 2013 at which it was decided to place A and B in separate foster placements. I do not know the reasons why this important decision was made nor the evidence on which it was made. A and B were never again placed together. I have no explanation as to why not.
22.On 19th November 2016 A and B had their first face to face contact since 2014. This has been requested by A who was pregnant.
23.On 12th March 2017 A gave birth to her first child, F. She had no secure or stable accommodation. A whilst pregnant and after F was born had been living in an annexe at her former foster carer’s home. In May 2018 A reported to the local authority that she and F had been evicted by her former foster carer and that she had nowhere to go. The local authority’s response to the plight of this young mother and care leaver was wholly inadequate. The response was so poor that, the Head of Service, Gillian Cox, accepted that the local authority had failed A and her daughter.
26.Between December 2013 and 1st September 2017, when she had attained her majority, A had had at least 5 changes of placement in various different areas of the country. There is no doubt that the instability in A’s life during these formative years, including the numerous changes of placement, have caused her significant emotional and psychological harm.
27.Between February 2016 and 6th March 2018 B endured 7 changes of placement in various different areas of the country. The harm suffered by B as a result of these changes in placement in terms of her emotional and psychological wellbeing are incalculable.
28.Between November 2008 and May 2018 A has had 6 different social workers allocated to her case. Between June 2014 and August 2018 B has had 8 different social workers allocated to her case. I accept the reallocation of case in October 2016 to a social worker in the 16+ Team was inevitable. There is, however, no good or cogent explanation for the high turnover of the other social workers which, to put it mildly, must have been unsettling and unhelpful.
29.From the time the children were made the subject of care orders and placement orders in February 2008 until October 2018 this local authority has had eight different independent reviewing officers (IRO) responsible for the oversight of their care plans.
(In 25 years of practicing family law, in various different local authorities, I don’t think I’ve MET 8 different IROs, but these girls had 8 different ones allocated to them at various points…)
The Head of Service filed a statement setting out the admissions that the LA made as to their failings in this case
30.I was so concerned at the failures of the local authority in respect of A and B that I ordered Ms Cox, the Head of Service, to file a statement setting out an explanation for the same. Her statement is dated 1st November 2018.
31.In respect of A, Ms Cox said as follows:
“In my view our service has failed to support [A] as I would expect since she first became homeless and in particular I would identify the following:
- In May when [A] first contacted our team to say that she was homeless we should have offered her supported lodgings accommodation in Herefordshire with [F] on a temporary basis whilst a longer term solution was identified. We should also have pro-actively supported [A] to search for private rented options in Birmingham and made it clear to her that we would financially support her with a bond and act as a guarantor if required.
- As time progressed and [A] continued to ask us for help and was not able to obtain suitable accommodation for herself in Birmingham we should have revisited these options and again offered her short-term solutions in Herefordshire and proactively supported her to find private rented accommodation. On the 15th June [A] specifically requested to return to Herefordshire but I can find no evidence of this being responded to which is unacceptable.
- The situation should have been escalated through Heads of Service to our Assistant Director and Director who have all asked to be kept informed of any young person who is placed in Bed and Breakfast accommodation. In the turnover of team managers and Heads of Service this expectation was not understood.
- On the 18th June [A] was informed that the local authority decision was that we would not pay a bond for her to secure private rented accommodation for her. This was not the case as this was agreed by the Head of Service when she was made aware of the situation. It is concerning that the team lack clarity about the support they are able to offer and did not escalate the situation earlier.
- There was a delay of almost a month in authorising a placement request made in July and this is unacceptable. The delay was due to further information not being provided to the Head of Service but in the circumstances the Head of Service should have been more pro-active in gaining the information she required.
- On the 11th October the personal advisor supported [A] and [F] to move from the Travel lodge to Northbrook hostel but did not look around the shared facilities. She described the accommodation as “basic” but did not raise concerns about the suitability of it for [A] and [F]. Having seen the photographs that [A] sent via her legal representative I was appalled by the state of the accommodation she was living in and was very clear that this was unsuitable and she should not have been left there.
- [A] is currently living in a supported lodging placement in Herefordshire with her daughter, [F]. She moved there on Tuesday 23rd October as an interim arrangement whilst suitable private rented accommodation for [A] and [F] is sourced in Birmingham. I received photographs and an email that [A] had sent her legal representative on the 23rd October and I was appalled at the state of the accommodation that she was living in. I telephoned [A] directly myself and asked if she would be willing to move to a supported lodging placement in Herefordshire if I could arrange that whilst we sorted out a suitable place for her to live in Birmingham. [A] was concerned about moving away from Birmingham but I was able to reassure her that this would be for just a short time. [A] agreed and so I made arrangements for our fostering team to find a placement for her and [F] and for her personal advisor to go to Birmingham to collect her that day.
- [A] was supported by her personal advisor to view flats in Birmingham on Thursday, 25th October and found a flat that she liked in an area that she is happy to live in. Herefordshire Council has paid 6 months’ rent up front and all relevant administrative fees to enable [A] to move into the accommodation. [A] will pay the housing benefit that she receives to the local authority as she receives it. At the time of writing this statement the plan is that [A] and [F] will move into their new home on Friday, 2nd November.
- [A] will continue to receive the support of her personal advisor. She is being referred for “floating support” and the most suitable provider for this is being investigated. The local authority will fund this support if [A] is not entitled to receive the support at no cost.”
32.In respect of B, Ms Cox observed in respect of the current placement that:
“[B] continues to live in a supported lodging placement with her boyfriend and his mother. She has lived there since March 2018. She is reported as happy living there although understands it is unusual to be living in the same home as her boyfriend at such a young age and is keen to move to live independently soon after she turns 18. She has been supported to register for housing and in the meantime can remain where she is. [B] will continue to receive the support of her personal advisor.”
33.I was told by Ms Cox that substantial steps have now been taken by the local authority to ensure:
- i) the mistakes and serious errors made in respect of A and B are not suffered nor endured by any other child or young person in the care of Herefordshire; and
- ii) far more robust procedures are now in place to ensure issues are escalated to more senior managers and, where appropriate, to the assistant director and/or the director of children’s services.
The Judge was concerned that the IRO system, which should have tackled these failings and drift, and got the LA to apply to revoke the placement orders and tighten up their planning for these girls (including ensuring that they had contact with one another) had not done so. He ordered a report from the Head of the IRO team
35.Accordingly I ordered the Head of Service, Safeguarding and Review (i.e. the head of the IRO service for this local authority), Cath Thomas, to file a statement. I am grateful to Ms Thomas, as I am to Ms Cox, for providing the court with a statement dated 1st November 2018. I regret to note that the statement contained a number of matters which caused me very profound and grave concern.
36.The statement of Ms Thomas concluded with the final paragraph:
“It is very clear that the issue of revoking [B]’s placement order continued without resolution for a significantly long period of time, both prior to and since the data error was realised in early 2016. This length of delay is absolutely unacceptable and I apologise unreservedly to [B] and her sister. The IRO service failed to fulfil its statutory responsibilities to [B]. I failed to robustly challenge the views of my assistant director at the time, which I recognise I should have done and as head of service I take full responsibility for these failings and apologise unreservedly to the court.”
This is a frank acceptance of a proper degree of responsibility by Ms Thomas. I accept her apology without reservation. Some of her actions or more properly her lack of action may be explained or, at least, put into context by a number of events set out in her statement which I shall now turn to consider.
37.In the autumn of 2008 Children’s services in Herefordshire moved from paper files to electronic records. It was not discovered until January 2016 that the placement orders made in respect of both children had not been recorded on their electronic records. This may explain why subsequent IROs did not raise the issue of revocation of these orders, but it does not explain why the IRO at the time the care plan was changed in early 2009 from one of adoption to long term fostering did not do so.
38.Ms Thomas asserted that in an unrelated case an IRO had concerns about a child’s case and wished to obtain independent legal advice and/or refer the matter to Cafcass. She said she raised this issue with the then senior lawyer and the then assistant director in January 2017. The response from the assistant director to Ms Thomas was that she was not to seek independent legal advice nor to refer the matter to Cafcass. She was further told that if she did not comply with this ‘advice’, disciplinary procedures would be invoked. Ms Thomas asserted that this assistant director did not recognise the independent nature of the IRO service.
39.It is not for me to determine the truth of these assertions, not least because I have not heard from the former assistant director. The council’s legal department did, however, immediately upon receipt of Ms Thomas’ statement invoke a whistleblowing investigation which has been reported to the Chief Executive of the local authority and members of the council. I note that the then deputy county solicitor agreed with Ms Thomas’ recollection of events.
40.Ms Thomas asserted that it was because of the ‘advice’ given by the former assistant director that she did not escalate the case of A and B beyond the Head of Service level, did not seek to obtain independent legal advice and/or refer the matter to Cafcass. As Ms Thomas readily acknowledged this was, to say the least, deeply regrettable.
41.The former assistant director left this local authority in March 2018.
Obviously the Judge did not hear from the former assistant director who allegedly told an IRO that escalating a complaint about a child’s case would be treated as a disciplinary matter, so there is not a finding as to whether or not that happened. (He notes, however, that the Deputy County Solicitor agreed with what Ms Thomas was alleging)
So we can’t say that this actually definitively happened, but if it DID, then there’s a complete failure to understand the role of the IRO and how vital their independence is. The Judge set out the framework and the importance of independence and the ability for IROs to obtain independent legal advice in detail, concluding this
50.I am appalled at the manner in which and the serial occasions on which the social workers and their managers have failed these two young people. The fact that I have chosen in this judgment to focus on the role and actions of the various IRO’s should not be taken in any way to diminish the failures of the social workers and/or their mangers in this case. Rather the failings of the IROs has been so stark and grave that, in my judgment, it was appropriate to focus on the failings of the IROs and the IRO service in this case.
51.Once a court makes a care order it entrusts, as by statute it must, the future care of the child to the local authority. The essential safeguard the court and the public at large have that a local authority will be a good corporate parent is the function and role of the IRO. Any obstruction of an IRO performing their statutory role or any diminution in an IRO, or their manager, feeling empowered to do so, is a matter of the utmost consequence. For otherwise a looked after child is subject to the vagaries of social work practice and the local authority’s different pressures and priorities. The IRO is, or should be, the child’s protector or advocate. If the IRO is silenced or pressured not to act as the child’s interests demand and require, it is the child who will suffer – just as these children, A and B have suffered.
52.This local authority, as it has accepted, failed both young people in the errors made by its social workers and their managers over a very prolonged period of time.
53.The IROs failed them on a serious and serial basis.
54.I entirely accept and acknowledge that in these straitened financial times all local authorities are stretched. Furthermore I recognise that this local authority, like very many around the country, have difficulties recruiting and retaining social workers. As a consequence many social workers have to carry very heavy case loads, may not have sufficient experience to deal with the more complex cases and/or have limited time to work on a particular case.
55.These difficulties, however, do not begin to explain the wholesale failure of this local authority, in its role as a corporate parent to plan adequately or appropriately for the care of these children. I simply do not know or do not understand why the care plan was changed from adoption to long term fostering in 2009. The explanation given in B’s 2018 Care Plan is plainly false or, at best, inaccurate.
56.This means that neither A nor B can now be given a clear and cogent explanation of why they suffered such instability when in the care of this local authority. I find this to be profoundly regrettable.
57.The fact that the local authorities are under financial pressures, and there too few social workers who carry too many cases, increases the importance of the role performed by the IROs. When it is known deadlines may be missed, visits not undertaken, assessments not completed or other actions in furtherance of a child’s care plan not addressed, the IROs must take active steps to ensure a child’s welfare and future care is not disadvantaged by these omissions.
58.Whatever opposition or obstruction the IRO or Head of Service faced from a local authority, the IROs and their managers must remember that their first and foremost duty is to the children and young people that they serve. If this is ignored or obstructed, it is only the children or young people, who are our future, who will be harmed.
59.The clear message must go out that IROs serve a vital and essential function to ensure that a child’s or a young person’s interests are met post the making of a care order or other orders. If those functions and roles are not exercised in a clear, robust and untrammelled fashion, the children or young people will suffer.