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Tag Archives: judicial criticism about section 20

And I’m all outta bubblegum

 

 

It is always enjoyable for me to receive a judgment from His Honour Judge Wildblood QC.  I expect that there may be a slightly different qualitative experience between reading one at a safe geographical distance and being physically present to receive it on a case you’re involved in.

 

My mental image of His Honour Judge Wildblood QC is that of a kindly man who nonetheless would be able to come into his Court room and open with the Rowdy Roddy Piper (God Rest his soul) line

 

“I came here to chew bubblegum and kick ass… and I’m all outta bubblegum”

 

[Incidentally, the fight scene in this movie, They Live, which is between two characters, one of whom wants the other to put on a pair of sunglasses and the other who is reluctant to don said sunglasses, is so epic that my dad came and got me out of bed to come and watch it at about three am, when he was watching this film on TV. And I was glad that he did. It is marvellous.  In case you are in any doubt – when I compare HH J Wildblood QC with Rowdy Roddy Piper it is intended as high praise]

This case does not disappoint on that level. There was clearly a deficiency of gum that day, but no deficiency of kicking ass.

 

Gloucestershire CC and M 2015

 

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B147.html

I am publishing the judgment in this case because it is an example of the following:

i) The unnecessarily protected use of accommodation of a child under section 20 of The Children Act 1989. This child was accommodated with short term foster carers for 12 months before these inevitable proceedings were issued and has now been with them for about 16 months.

ii) The delayed identification of the need for therapeutic intervention for this mother. 19 months after the Local Authority intervened in a family where the mother had obvious difficulties it was identified that the mother needed therapy. It was then said that, by then, the benefit of therapy was ‘outwith the timescales of the child’. If psychological evidence was to be obtained with the invariable recommendation of therapy (and I have never known a psychologist not recommend therapy in a report) I cannot understand why it was not obtained much earlier.

iii) Failure to identify realistic options leading to the adjournment of this final hearing and a consequent inability to meet the timetabling demands of section 32 of The Children Act 1989, as amended.

 

Section 20 drift has been something of a theme of the Courts and hence this blog, for some time now.

As a quick rule of thumb for a social worker thinking about a case in their cabinet/caseload where there’s a section 20 agreement, ask yourself this question

 

If the mother or father rang you this afternoon and said “I want the child back” would you be ?

 

(a) Perfectly fine about that and make the arrangements

(b) Okay about it, but suggest that the move take place over the next 2 days to make the preparations

(c) Concerned and thinking that the child would not be safe at the moment, if they went home

(d) In a blind panic, and wanting to do anything to stop that happening

 

If your answer is (c) or (d), then it isn’t really a proper use of section 20 any more. The section 20 here is a very short holding position until you can either have a Meeting Before Action at which the parents will have lawyers, or care proceedings at which the parents will have lawyers.

 

 

  1. C grew up in the primary care of his mother until 28th May 2014 when, at the age of 5, he was removed from the mother under police powers of protection and then accommodated by the Local Authority with foster carers. The mother does not accept that the threshold criteria in s31 (2) of The Children Act 1989 are fulfilled and has also issued a claim for damages under The Human Rights Act 1998 in relation to the circumstances in which C was removed from her care and the manner in which the Local Authority has conducted itself in relation to C. On the same day in May 2014 A went to live with Mr D.
  2. For no valid reason it took the Local Authority a year, that is until 15th May 2015, to issue these proceedings. In its application the Local Authority said at B9: ‘C was the subject of a child protection plan from August 2013 until 19th May 2014 as a consequence of neglectful parenting. The concerns related to the dirty and unhygienic home conditions and the mother’s mental health and its impact upon her parenting and capacity to meet her child’s needs. A week after de-registration a further child protection referral was received. C was accommodated on 29th May 2014 following police powers of protection being used on 28th May 2014. The police removed C as a consequence of a person known to be a risk to children continuing to have contact with him (against professional advice) and because of the unsuitable home conditions. On 29th September 2014 the mother was evicted from her flat which had been significantly damaged. The mother was sofa surfing. Roger Hutchinson, psychologist, completed a report on the mother on 9th March 2015. This concluded that the mother experiences social anxiety and schizoid and paranoid traits with poorly developed social, functional and adaptive skills. Therapy is indicated over a nine month period’.
  3. C has therefore been with his current foster carers for 16 months of his life, has settled with them and is integrated into life with them. His mother has been having contact with him twice a week for sessions lasting one hour and although there have been inevitable niggles about that contact, a condensed analysis of that contact could not express it as falling below the grasp of the adjective ‘reasonable’ on my current reading of the papers and submissions that were made at the IRH. C’s educational and social connections, at an important time of his life when he is settling into school, have all been made from the base of his current foster home. The foster carers have done an excellent job in caring for him and, in his letter to the judge, C says ‘my family is [the foster father, the foster mother and their cat]‘ and draws the foster father with a big smile on his face. The guardian reports that C is making ‘greatly improved progress at school and his health has improved’ since living with them [A14].

 

 

These three paragraphs of background raise the three obvious questions

 

  1. What the hell took the LA so long to issue?
  2. Is it fair for the LA to have delayed so long in finding out that mum needed 9 months of therapy – because if they’d found out earlier, she’d have had it by now
  3. IF the child can’t go and live with mother, surely this child is going to stay with the current carers if humanly possible

 

However, the LA in this case had delayed for so long, were saying that the child couldn’t wait for mum to have therapy, and had ruled out the current foster carer as an option.

 

Taking these in turn

i) Having been involved with this mother since August 2013 and having accommodated this child in May 2014 it is inexplicable that it took a year for the Local Authority to issue these proceedings. That has absolutely nothing to do with limited resources. It is simply bad practice.

 

On the issue of therapy :-

 

ii) The Local Authority knew the mother’s level of functioning but still took until 9th March 2015 to identify that this mother needed therapy. Knowing the mother’s level of functioning why did it take 19 months (from August 2013) to do that? How can it be regarded as satisfactory for the Local Authority now to say that the mother needs therapy which is outwith the timescales of the child? For instance, if a psychologist’s report had been obtained within three months of C being accommodated (i.e. in August 2014) there could have been 13 months of therapy by now at far less expense than the cost of these proceedings leading to the possibility that the consequences of this mother’s unfortunate background could have been mitigated with the child receiving an upbringing with her

 

[I have a bit of sympathy with the LA here –  I’m not sure whether anyone actually argued that as a result of House of Lords authority Kent County Council v G, it is not within the Court’s powers to compel the provision of therapy, that therapy thus has to be resourced through the NHS and the NHS aren’t going to provide therapy without a clear diagnosis and recommendation, at least not without a huge waiting list. So tempting as it is to just start the therapy whilst waiting for the expert report, that isn’t how the real world works.  It is fair enough to say that the real world in this regard sucks and it needs to change.   There is possibly a big argument to come as to whether the House of Lords settled position that “there is no article 8 right to be made a better parent at public expense” is compatible with what Baroness Hale says in Re B about the State needing to provide the resources to do just that, but that’s a debate that can only be resolved by the Supreme Court. ]

 

On the last issue, why the current foster carers had been rejected in favour of adoption by the LA.

 

  1. At the IRH, on 8th September 2015, I was told that the current foster carers were not offering C a long term home. The guardian says in her position statement: ‘since the IRH on 8th September 2015 the guardian has spoken to C’s current foster carers. They have confirmed they have never said they would not keep C long term as foster carers. They would not wish to consider special guardianship or adoption because they see themselves as foster carers and may well wish to foster another child and would wish both children to be placed with them on the same basis. The foster carer has also informed the guardian that Mr D has on a number of occasions said that he would be prepared to care for C if there were no other options’.
  2. It is right that, on 27th August 2015 there was a discussion between the adoption social worker, TG, and the foster carers. I have the case note in relation to that. This conversation therefore took place six days after the placement application had been filed by the Local Authority (so the Local Authority had already ruled out long term fostering then). The foster carers were saying at the time of that note that they did not feel able to adopt C. They are not recorded as saying that they would not foster C. It took one conversation between the guardian and the foster carers to clarify matters. When asked directly by the social worker on an unspecified date (but after the IRH) ‘the foster father confirmed that he and the foster mother would have C for as along as is needed in long term foster care with a care order if they were supported by the Local Authority’. The clear impression that I have, having read the papers, heard the IRH and listened to submissions today, is that the Local Authority did not consider the possibility of long term fostering with the foster carers and, once it regarded the mother as ruled out, its linear analysis took it to adoption.

 

So the child’s current foster carer, who everyone involved would agree had done a marvellous job, was willing to be a permanent carer for the child, just that he didn’t want to adopt the child. The LA had approached this on the basis of “our plan is adoption, you don’t want to adopt, therefore you are out”, rather than looking at whether the child could remain with the carer on a different basis THUS avoiding the need for adoption.

 

The case simply could not be concluded, as there were too many unknowns.

Following a heavy IRH on 8th September 2015 the case is listed before me for final hearing for the rest of this week. That final hearing cannot proceed because there are realistic options in relation to the future care of C that have not been assessed by the Local Authority. That means that large amounts of public money and time have been wasted in a Local Authority involvement that has spanned 16 months. All parties now say that the case has to be adjourned. Eventually, I have had to give up my attempt at keeping this case on the rails of this final hearing and have had to accede to adjournment. To adjourn a case where there has been lengthy Local Authority involvement with a family in a straightforward case is absurd but now unavoidable.

 

 

and in conclusion

  1. What are the options that need to be considered? They are these:

    i) That C should be rehabilitated to his mother. Of course, nature, law and common sense require that it be recognised that the best place for a child to live is with his natural parent unless proven and proportionate necessity otherwise demands. As matters stand the professional evidence is all stacked up against this mother but her case will require very careful consideration at a final hearing.

    ii) That C should continue to be a child fostered by Mr and Mrs B. If the Local Authority will not support this the only way in which C could live with the foster carers would be through private law orders. If special guardianship orders were to be proposed there would need to be a report under s14A(8) of The Children Act 1989. Therefore I need to flush out what the Local Authority is saying. If it will not agree that C should remain with the foster carers (should the court so recommend on the making of a care order and a rejection of the placement application), I will have to give directions for a special guardianship application to proceed (a written application is not necessary if I so determine – s14A(6)(b) of the 1989 Act). The possibility of C remaining with the foster carers is unassessed by the Local Authority and there has not been sufficient discussion with them.

    iii) That C should live with Mr D and A. This is also unassessed. There is no blood relationship between Mr D and C but there is a blood relationship between A and C. They have a clear fraternal attachment (in which C is A’s big brother). That possibility remains unassessed also.

    iv) That C should be placed for adoption. That is an option upon which I have already commented. I am not suggesting that there are difficulties about that option on the basis of age alone. I say that there are difficulties about it because of the particular circumstances of this child.

  2. Therefore today I have had to give directions for the future of these proceedings. By the time that the case comes back the new baby will have been born, and I wish the mother well with the birth. However, the advent of the new baby will mean that there are additional complications that will arise in ensuring that the best solution is found for C.
  3. I have given this judgment in writing so that there is a formal record of what has gone wrong in this case and how matters must now be put right. The Local Authority must consider the realistic options that arise and must put its case into order.
  4. Proper plans must be put in place for the birth of the baby and where the inevitable assessment of the mother and the baby will take place. That should have been done already. The mother is in and out of hospital at the moment and it is manifestly unfair that, as well as dealing with the physical demands of impending birth and repeated hospital appointments, she is also having to deal with the uncertainties of these proceedings and a lack of knowledge about what will happen when she does give birth – where will she be living and what is planned for the baby?
  5. The Local Authority must therefore look at the options that arise and file proper evidence in relation to them. The case will have to come back before me later this week when I will have to give further directions as to how that will be achieved. It is deeply frustrating that a case such as this has to exceed the timescales provided by section 32 of The Children Act 1989 and that should be recorded as having been caused by systemic failure by the Local Authority

 

 

There is also some pending litigation in this case as to whether when the child was originally removed from the parents by police protection, whether that was in breach of the families human rights – it being really settled law that where removal of a child is being contemplated it should be a decision of the Court unless there are exceptional and compelling reasons why the removal cannot wait for a Court hearing.

 

 

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Medway case part 2 – a lot of practice issues

Following on from the last blog – I don’t often split case discussions, but in this one I felt that the issues over the foster carer and recording was worth a piece on its own.

 

This piece now tackles some of the many practice issues raised by Medway Council v A  2015 http://www.bailii.org/ew/cases/EWFC/OJ/2015/B66.html

 

Let us start with our old friend section 20

 

 

  • 6 On 6.8.14 the SW claims she contacted the Maternal Grandmother and Mr S to see if alternative arrangements could be made within the family to support them. Issues have been raised about her manner of doing so, and whether appropriate support was offered. I make no finding as it has not been possible to explore this fully, but I note that there were several meetings that took place on this date and the SW will have wanted that information beforehand and so may have sounded abrupt and left little time for matters to be considered.
  • 7 By the end of that day the parents had signed a section 20 agreement which they and Mr S thought simply covered a two week period in a mother and baby foster placement. It is clear from the notes in the medical records, and the SW accepts, that the issue of Mother’s vulnerability was raised by Mrs Rose before Mother signed the section 20 agreement. The SW also accepted that in addition to the hospital’s concerns, Mr S and the Maternal Grandmother had confirmed that Mother had a learning difficulty. The SW accepted that it was not appropriate to have obtained Mother’s signature to an agreement under s20 in such circumstances where her cognitive abilities had been questioned by other professionals and no assessment had taken place. I also note that it was obtained prior to the strategy meeting taking place on 7.8.14.

We now know that the mother’s IQ was 54, making it extremely questionable that she had capacity to sign a section 20 agreement – certainly without it being really carefully explained to her. In any event, the parents understanding was that they were agreeing to a two week placement and the placement was actually intended to be for twelve weeks, breaking down after 40 days. This, once again is not a fair and proper use of section 20.

 

  • The guidance of Hedley J in Coventry City Council v C, B, CA and CH [2012] COPLR 658 is as follows, at paragraph 46: “i) every social worker obtaining consent to accommodation of a child from a parent (with parental responsibility) is under a personal duty to be satisfied that the person giving consent does not lack the required capacity; ii) the social worker must actively address the issue of capacity, take into account all the prevailing circumstances and must consider the questions raised by Mental Capacity Act 2005, section 3 and in particular the mother’s capacity to use and weigh all the relevant information; iii) if the social worker has doubts about capacity, no further attempt should be made to obtain consent on that occasion. Advice should be sought from the social work team leader or management.”
  • I acknowledge that the Father signed the section 20 agreement, but this is not good enough (cf s.20(7) Children Act). I have been appalled at the reliance placed by Medway on a section 20 agreement signed by the Mother. She was encouraged to sign it on 6.8.14 without any assessment of her learning difficulty or her capacity. This is wholly unacceptable when the SW knew from the hospital staff and family members that Mother had a learning difficulty and appeared to have problems with her understanding.
  • Medway should not have waited to rely on assessments prompted and undertaken by another agency. Given the anxieties expressed by Mrs Rose at the meetings on 6.8.14, I consider that a section 20 agreement should never have been pursued that day.
  • While I accept that subsequent assessments, by the Learning Disability nurse and by Dr Conning, have suggested that she has capacity, these should not vindicate this practice of relying on a section 20 agreement that was obtained beforehand. In any event I do not consider that an Learning Disability nurse’s assessment on the ward should have been relied upon in relation to the import of a section 20 agreement by which a parent agrees to major interferences with the family’s life. And I further note that Dr Conning’s assessment of the Mother’s capacity in October 2014 was couched in terms of having capacity in the context of her being supported by her legal team and her husband (also legally advised by then).
  • It is likely that the cognitive assessment appointment two weeks after the section 20 agreement was signed, on 21.8.14, followed from the Resource Panel’s concerns expressed at the meeting on 19.8.14, and there appears to have been no attempt by the SW or her team manager to arrange one before then. Although I acknowledge that efforts were then made to obtain a cognitive assessment of Mother on 21.8.14 and 2.9.14 that were not successful due to the Mother’s non-attendance, nonetheless it meant that the section 20 agreement that was extended on 3.9.14 was equally flawed.
  • Mr Crimes’ assessment was sent on 8.9.14. He assessed Mother as having a full IQ score of 54, and as he noted in the accompanying email to the SW this was about the lowest level of functioning he had ever assessed. This was not an assessment of her capacity but set out a grave picture of impairment of her ability to comprehend and make decisions about complex information. Mother was not then assessed as to her capacity until 10.10.14 which was within the care proceedings and with the benefit of legal advice and representation – an important difference. Given the information from Mr Crimes on 5.9.14, Medway should immediately have taken steps in early September and not continued to rely on a section 20 agreement obtained from a vulnerable new mother with this degree of learning disability.
  • Several difficulties arise for vulnerable adults in these circumstances. They are unlikely to want to appear to be difficult or obstructive and so they may well agree to section 20 arrangements that are not necessarily appropriate. Once they have agreed to such arrangements, and are in a mother and baby foster placement as in this case for example, there is a natural impetus to remain with the child and so be locked into a continued agreement to the arrangement. Most significantly, the use of section 20 agreements results in vulnerable adults coping with such circumstances without legal advice or representation.
  • This was compounded here by there being no referral to adult services and no input from social workers experienced in working with vulnerable adults and who are not focussing simply on child protection issues, but are able to bring their knowledge and experience to bear on the case.
  • Just over 40 days passed between the section 20 agreement and the issue of proceedings. It was in this period that the Mother was placed in an inappropriate placement, isolated from her family and increasingly deprived of the support of her husband, and moving towards the breakdown of the placement. I acknowledge that this is not the length of time experienced by the families in the recently reported cases of Re P (A child: Use of section 20) [2014] EWFC 775 and Northamptonshire and DS [2014] EWHC 199 (Fam), but the real significance is this: if it had been properly recognised that section 20 should not be used in these circumstances and proceedings had been issued at an earlier stage, it is likely that arguments about appropriate placements and assessments would have been raised by the parents’ legal representatives, and an inappropriate placement and lack of assessment and ultimately early separation of baby A from his parents may well have all been avoided.

 

 

Learning difficulties

 

We touched in the last piece on the failure to find a specialist placement for the mother, and as you can see from the passage above, no referral was made to Adult Services to get help for mother in her own right, though it must have been apparent that she needed it. There simply wasn’t proper thought given to what the mother’s difficulties meant in terms of how she should be supported, helped or treated

 

 

  • I have set out in Appendix A and B to this judgment respective links to the 2007 DoH Good Practice Guidance on working with parents with disabilities which is cited as a relevant resource in the 2015 Working Together Guidance, together with limited extracts from those documents (while of course recommending that these documents should be properly considered by those involved in this case in their entirety).
  • I also quote here from Mr Justice Baker’s analysis in Re X Y X (Minors) [2011] EWHC 402 (Fam):

 

“132. The last thirty years have seen a radical reappraisal of the way in which people with a learning disability are treated in society. It is now recognised that they need to be supported and enabled to lead their lives as full members of the community, free from discrimination and prejudice. This policy is right, not only for the individual, since it gives due respect to his or her personal autonomy and human rights, but also for society at large, since it is to the benefit of the whole community that all people are included and respected as equal members of society. One consequence of this change in attitudes has been a wider acceptance that people with learning disability may, in many cases, with assistance, be able to bring up children successfully. Another consequence has been the realisation that learning disability often goes undetected, with the result that persons with such disabilities are not afforded the help that they need to meet the challenges that modern life poses, particularly in certain areas of life, notably education, the workplace and the family. 133. To meet the particular difficulties encountered in identifying and helping those with a learning disability in the family, the government published in 2007 “Good Practice Guidance on Working with Parents with a Learning Disability”. In their closing submissions, Miss Ball and Miss Boye contended that such good practice guidance is required because there is little evidence of effective joint working between adult and children’s services and practitioners in each area rarely have a good working knowledge of the policy and legislative framework within which the other is working. They submitted that local authorities frequently do not take account of the fact that, if children are to be enabled to remain in their own families, a specialist approach to a parent with a learning disability is absolutely central to any work that is done, any protection which is offered and any hope of keeping the family together. The 2007 guidance points out, inter alia, that a specialised response is often required when working with families where the parent has a learning disability; that key features of good practice in working with parents with a learning disability include (a) accessible and clear information, (b) clear and co-ordinated referral and assessment procedures, (c) support designed to meet the parent’s needs and strengths, (d) long-term support where necessary, and (e) access to independent advocacy; that people may misunderstand or misinterpret what a professional is telling them so that it is important to check what someone understands, and to avoid blaming them for getting the wrong message; that adult and children’s services and health and social care should jointly agree local protocols for referrals, assessments and care pathways in order to respond appropriately and promptly to the needs of both parents and children; and that, if a referral is made to children’s services and then it becomes apparent that a parent has a learning disability, a referral should also be made to adult learning disability services. The guidance also stresses that close attention should be paid to the parent’s access needs, which may include putting written material into an accessible format, avoiding the use of jargon, taking more time to explain things, and being prepared to tell parents things more than once.”

 

  • And Wall LJ makes a relevant comments in P v. Nottingham City Council and the Official Solicitor [2008] EWCA Civ 462:

 

“175. It is, I think, inevitable that in its pre-proceedings work with a child’s family, the local authority will gain information about the capacity of the child’s parents. The critical question is what it does with that information, particularly in a case where the social workers form the view that the parent in question may have learning difficulties.’ 176. At this point, in many cases, the local authority will be working with the child’s parents in an attempt to keep the family together. In my judgment, the practical answer in these circumstances is likely to be that the parent in question should be referred to the local authority’s adult learning disability team (or its equivalent) for help and advice. If that team thinks that further investigations are required, it can undertake them: it should, moreover, have the necessary contacts and resources to commission a report so that as soon as the pre-proceedings letter is written, and proceedings are issued, the legal advisers for the parent can be in a position, with public funding, to address the question of a litigation friend. It is, I think, important that judgments on capacity are not made by the social workers from the child protection team.’

181. In the pre-proceedings phase local authorities should feel free to do whatever is necessary in social work terms to assist parents who may become protected parties. My view, however, is that this is best achieved by members of the adult learning disabilities team who do not have responsibility for the children concerned.”

 

  • It is clear that the purpose of the 2007 DoH Good Practice Guidance, namely to ensure that appropriate steps are taken to ensure services and training are in place to meet the needs of parents with disabilities, has yet to be met in Medway; and there appears to have been little if any awareness of the DoH Good Practice Guidance’s recommendations shown by Medway’s practice in this case.
  • In order to comply with their duties under s17 Children Act 1989 and in accordance with the good practice set out in the Guidance, this SW, her managers and this local authority should have:

 

  • Immediately made a referral to the adult services Learning Disability team and worked together with them to benefit from their advice, training, experience and resources;
  • Triggered an assessment of Mother’s abilities via the Learning Disability team;
  • Ensured the appointment of an adult care SW for Mother:
  • Identified and provided a specialist resource within a short period of time, in order to assess the Mother, and her and the family’s needs for support;
  • As soon as the parents expressed complaints about the placement, if not before, provided her with details of how to complain;
  • Investigated more fully the support options available from Father, friends and family.

 

Bundle-culling

 

The stipulations of Practice Direction 27A were followed in this case – care was taken to produce a bundle that did not exceed 350 pages in length. The problem is that despite that intention to comply with those stipulations, the culling exercise itself was problematic.

 

  • Thus at the outset of this hearing there were significant contested findings and the most serious of final orders sought against the parents. However, it became apparent that the preparation for such a hearing had been a mess, and there were a number of evidential and procedural issues that almost forced the adjournment of an entire final hearing that would have caused significant delay and extended further the separation of parents and child. I will discuss aspects of this case management as a separate final section of this judgment.
  • In short, it quickly emerged that the documents included in the 350 page PD27A compliant bundle prepared by Medway had been ‘culled’ (to use the term coined by counsel for Medway) from all the documents relating to the case. That cull had been undertaken unilaterally by Medway at the last minute and without agreement of the other parties, and they unsurprisingly considered it to be partial and incomplete. Last minute attempts were made by A’s advocate to prepare a more comprehensive bundle. Given the wide-ranging and serious counter-factual issues it was necessary to further expand the bundle during this hearing to include key missing documents. These have included the medical notes and social work case recordings for the key period of August to September 2014, but the bundle was also even missing the Mother’s statement and the Father’s first statement.
  • Additionally, the evidence has now included the statements and notes of the Safeguarding Midwife Mrs Rose and the Health Visitor Ms Gibson. These were directed by DJ Gill at the IRH held on 5.2.15 to be filed by Medway by 12.2.15 and they were named in the IRH order as witnesses to be heard at the final hearing, but their evidence and notes were still outstanding at the outset of this hearing (mid-April). I made peremptory directions to ensure, in A’s interests, that this evidence was available by day 3 of this hearing. Such directions were among those that should and could have been sought and made since the IRH but long prior to the final hearing. I was also obliged to direct that missing foster carer’s notes and social work recordings from the crucial period in August and September 2014 should be provided. I did not permit Medway to file a further statement by Ms Down, supervising SW from ISP (the agency providing the foster placement), as to what she had seen, heard or done regarding the foster placement. This application was made over a week after the final hearing had begun and on the morning that the foster carer was due to give evidence. Ms Down had not been one of the named witnesses in the IRH order, and I considered it was unfair for the local authority to be attempting to add further evidence and witnesses at this very late stage in the proceedings, and would risk an unnecessary and disproportionate adjournment.
  • I have read all the documents and evidence filed in this case and all the documents additionally prepared by the advocates (whom, I must add, have been of great assistance to the court in the challenging circumstances in which this final hearing came to court). I have heard evidence from Mrs Rose, Ms Gibson, Ms Anyimiah, Ms Barton, the foster carer Ms McG, Ms Stewart, the parents and the Children’s Guardian; and I have heard and read the parties’ submissions.

 

 

 

a) PD27A COMPLIANT BUNDLE – There is little point in Medway having created a bundle a few days before a final hearing by unilaterally selecting documents to fit the 350 page limit. Needless to say it was not considered fit for purpose by the other parties and I have already identified that it lacked crucial documents. This, and the various acts of non-compliance discussed elsewhere, betray an unacceptable failure by Medway to adequately prepare the case, to consider properly which documents would be required, to focus on the issues and the evidence, and to apply itself with care and a sense of the necessarily heavy responsibilities borne by applicant local authorities when applying for care and placement orders which have life-changing consequences for families.

b) In order to achieve a meaningful compliance with PD27A, the local authority should liaise with the other parties at an advocates’ meeting prior to the IRH to agree a provisional core bundle index. This will not only assist with the proper analysis of the issues and evidence in readiness for an IRH, and permit a proper resolution of issues at that hearing, but will also identify any further documents that may need to be the subject of an application to depart from PD27A and form a supplemental bundle, and which can be addressed and resolved at that IRH. I will be implementing directions to facilitate this approach at CMHs, but even absent such directions it is evident that a local authority applicant should be taking on this responsibility in any event.

 

That is the only way that the 350 page stipulation can actually work. However, that hinges on getting actual responses from the other advocates. If they have not yet read all of the source material and records, or are not going to be trial counsel, then there’s resistance to culling any document. I can see why – who wants to agree that “we don’t need the Health Visitor records” only to find later during exhaustive preparation that there’s something vital within them.  And rather than argue that those particular records must go in, it is simpler just to not agree to any culling at all.  Of course, if everyone came to an IRH having prepared their cross-examination and knowing all of the issues they would want to take up with witnesses at final hearing and what documents would assist, that would solve everything. But that’s not likely to happen. Preparation for an IRH IS different to preparation for a final hearing. For one thing, you’ve got all of the evidence, whereas all too often at IRH final statements from this or that party are still outstanding.  For another, counsel preparing for a final hearing knows that they are actually going to be the ones asking the question, whereas at IRH the final hearing will be listed at the Court’s convenience and it will be pot-luck whether counsel at the IRH will be free to do the final hearing.  [That’s a solveable problem by going back to the old system of listing a final hearing at the early stage of the case that everyone can work towards. That’s even more important given that we have to conclude cases by week 26, so only deciding to list a final hearing at week 20 is a recipe for disaster. Everyone bar HMCS thinks that is a good idea, but as HMCS don’t like it, it won’t happen]