I occasionally make reference to judgments where the Judge opens a can of whoop-ass on one party, usually the Local Authority. This one goes so far beyond a can, and even beyond a supermarket trolley filled with cans of whoop-ass that only the title I’ve selected will suffice to show just how much whoop-ass was being thrown about. And rightly so.
IF you are from Herefordshire CC, you may want to skip this particular post. Or at least get a very strong coffee before reading.
I’ll open with the conclusion:-
- My strongest criticism must be directed at this local authority. In the whole of my professional life I have rarely encountered such egregious and long-standing failures by a local authority. The worst of it is, I cannot after the closest possible enquiry, understand why or what motivated the local authority to fail these children, this mother and the interveners as appallingly and for as extended a period of time. The whole history of the role of this local authority in the lives of these children is highly inexplicable. The only matter which is clear to me is that it did not have the welfare best interests of the children at the heart of its decision-making, such as it was.
- This must call into question whether this local authority’s children’s services department is fit for purpose. That is a question which is not for me to answer. I can say that they had failed these children in an extraordinary manner over a prolonged period of time.
- The local authority’s actions, omissions and failures in this case have been spread over a period in excess of eight years. Mr Baird readily accepted and described the conduct of the children’s services department in the lives of these children as appalling. He was plainly right to do so. He offered to write a personal letter of apology to Child A, Child B, Child D, the mother and the interveners and will ensure this course has been taken.
- Prior to receiving final closing submissions, I received a letter of apology to the court in respect of the local authority’s conduct in the light of these children from Herefordshire Council. The letter was signed by the Chief Executive of the council and by two of the deputy Chief Executives.
- I was told by Ms Meyer QC that the council had agreed to undertake an internal review of the council’s children services department and would commission an independent external review of the same.
- I gave permission for a copy of this judgement, once handed down, to be sent to named officers in Herefordshire Council in order to inform the reviews. Further, I was told that once an anonymised published version of this judgment was available, the Council proposed to call a full Council meeting at which the contents of this judgment would be discussed, and the way forward would be considered.
- I have directed that a copy of this judgment should be sent by the local authority to the following:
(i) The Secretary of State for Education
(ii) the Chief Social Worker
(iii) the Children’s Commmisioner; and
(iv) the Chief Inspector of Ofsted
There’s obviously a huge amount in this judgment and my summary of it is in no way a substitute for reading it. I’ll give a brief overview and then pick out some of the most serious complaints against the Local Authority
YY (Children: Conduct of the Local Authority)  EWHC 749 (Fam) (26 March 2021) (bailii.org)
(You know it is going to be worth a read when the case name has that description)
Four children were made the subject of Care Orders to Herefordshire in 2014 and placed in foster care. At the final hearing, allegations were made that the children had been the victims of sexual abuse – the Court found threshold proved but in terms of sexual abuse the findings were exposure to sexual knowledge rather than direct abuse.
The case came back to Court in 2019 for three things- mother’s application for contact, an application to change the children’s surname and an application by the LA to discharge the care orders with an invitation to make Special Guardianship Orders in favour of the foster carers.
During the enquiries about these applications, it emerged that the children had continued to make allegations of sexual harm and abuse and that the foster carers had not been properly appraised of the decision of the Court at the fact finding.
Tragically, in the interim period, one of the children became extremely unwell and subsequently died.
This is the first of the big complaints. When the child became ill and was on life-support, the medical advice was to have the life-support turned off. The parents were not consulted. The Local Authority, on legal advice, decided that they could use their powers under section 33 of the Children Act 1989 to consent to the life-support being turned off.
116. At 10:40am Mr Baird sent a draft response to Dr Zafurallah to the local authority’s legal department for approval. At 10:43am Tim Marks one of the then local authority solicitors replied to Mr Baird as follows:
“discussed this with Liz and we agreed birth parents need to be informed about the medical advice. We need to consult with them but my legal advice is our duty as corporate parents is to accept the medical advice and avoid unnecessary suffering. If this is contrary to the parents wishes it is unfortunate but we need to take that course”
As I shall set out shortly this legal advice, as Mr Baird now accepts, was wrong.
It is hard to imagine a decision that the Local Authority can ever take when dealing with a child that is more serious than consenting to a course of action that ends the child’s life. It is astonishing to me that anyone at a Local Authority could contemplate doing so under s33 rather than placing the case before a Court. It is unclear whether they even considered the article 2 implications.
133. In Child C’s case, therefore, the profound life and death decision to consent to the withdrawal of life support ought to have been the subject of an application to the High Court either by BCH or by the local authority. It was wrong and an inappropriate use of its powers under s.33 of the 1989 Act for the local authority to have exercised its powers to consent to the withdrawal of Child C’s life support.
Both the mother and the father told Ms Leader on the morning of 6th June 2019 that they agreed with the decisions of the treating clinicians. The local authority has now accepted that given:
i) neither parent had had any contact with any of the children, including Child C, since late 2012;
ii) neither had been involved in any meeting or discussion with treating clinicians at BCH; and
iii) the circumstances in which they were told of the parlous state of their daughter on early morning of 6th June;
I could not accept or find that either parent had given informed consent to the withdrawal of Child C’s life support.
Next topic for me is disclosure – this was a case where there were a wealth of documents and material to be considered and for the Local Authority to consider very rigorously whether they should disclose into the proceedings – the Local Authority has duties to disclose material which not only supports its case but may weaken or undermine its case or potentially strengthen the case of any other party.
The Court notes that due to the delays in providing proper disclosure and it coming in piecemeal and thus one set of documents disclosed revealing the existence of others that then had to be asked for, the oral evidence in this 20 day hearing could not begin until day 9.
It seems that the important task of handling discovery was left to social workers rather than being undertaken by lawyers.
The circumstances of the case reached a point in December 2016 where the Designated Family Judge who had been hearing the case felt compelled to include a recital in extremely strong terms
185. In his order of 2nd December 2016 HHJ Plunkett, understandably and wholly reasonably given the history of this case, included the following recital in his order:
“[the court] is concerned about the surprising degree of resistance to accept the clear judgment from the fact finding hearing by the Foster Carers and raises the option to move the children to Foster Carers who understand and support the reality as letting the children grow up not knowing the truth is likely to cause them emotional harm”
What did the local authority do in response to this very serious expression of concern by a judge that the children were suffering emotional harm in their foster placement and that consideration should be given to moving them to an alternative foster placement? Very shockingly the answer is nothing.
Ms Cox confirmed this in her evidence.
Worse still, on day 14 of this fact-finding hearing a note was disclosed of a meeting held on 13th December 2016 between Ms Cox and Mr Scott, a then assistant director of children’s services. At point 12 of 12, I repeat point 12 of 12, the following is recorded:
“YY case. In court. Challenge from Judge P re contact for relatives, ‘brainwashing’ by social workers/foster carers. Cafcass to visit children soon. Children plan in overview which we support. GC to discuss with AC on her return.”
HHJ Plunkett is not just a senior and hugely experienced family judge, he is the Designated Family Judge for Hereford and Worcester. The lack of any response to, or action taken in respect of, the concerns expressed is truly woeful. The utterly contemptuous response of an assistant director of children’s services of this local authority is absolutely appalling and shocking. It is completely inexcusable. However, this demonstrates the skewed and wholly inappropriate response of this local authority to the desperate needs of the children and reveals a mindset which has ultimately caused them considerable possibly irreparable emotional and psychological harm. I sincerely hope it has not.
The case had had the involvement with an expert, Dr Asen. The LA mounted an attack on him in a position statement. Keehan J was not, it would be fair to say, taken with this:-
182. Dr Asen had from time to time, between 2013 and 2016, been instructed to advise on the way forward in this case. He is one of the most experienced and highly regarded child psychiatrists in the field of high conflict children’s cases in the country. In 2014 a social work professional had recorded on the social work files that Dr Asen had expressed a view that the judgment and order of HHJ Rundell in the fact-finding hearing of 2013 was wrong and it should have been appealed. If this had been Dr Asen’s view he would have expressed it in one of his reports. He did not. I do not understand the motive for this false recording, but it indicates that the same professional in the local authority was not supportive of Dr Asen’s involvement in this case or of the positive change he was seeking to achieve.
For the purposes of the hearing before HHJ Plunkett on 2nd December 2016 when he was hearing the maternal grandmother’s application for contact, the local authority filed and served a position statement which contained the following:
“The local authority’s position at the last hearing was that contact should not progress to direct contact at this stage and challenged Dr Asen’s assessment. Then local authority believes that there is significant use of emotive language in Dr Asen’s report, which unhelpful and can be taken out of context; this raises concerned over the impartiality of the report and the conclusions he has come to. The local authority believed that there should be some work undertaken to progress matters, but that this must be done at the children’s pace and taking into consideration their very strong wishes and feelings.”
“The local authority believes that it can progress contact via the LAC review process. The local authority has significant concerns around the impact of direct and indirect contact and the children at this time, which are set out in detail within the local authority evidence. The parents are against any contact taking place between the children and their extended family; this is supported by the local authority, who share parental responsibility at this time.”
“The local authority wishes to progress life story work, at a pace right for the children, and in line with their emotional needs. The local authority is committed to undertaking this work and sees this as a part of the social workers role, and not of a child psychiatrist. The local authority is committed to promoting contact between the children and the extended family, but this must be in line with their emotional needs.”
Two important points arise:
i) it is disgraceful that this local authority chose to impugn the professional integrity of a highly respected child psychiatrist on the flimsiest of evidence. There was no evidential basis upon which any reasonable person could or should have questioned Dr Asen’s impartiality; and
ii) life story work may well be within the ambit of the social worker rather than a child psychiatrist, but after a few months in early 2017 the local authority did no life story work with the children.
The Court, understandably, spent a lot of time dealing with the assessment of the foster carers which the Local Authority filed as a Special Guardianship assessment. The assessment was written by Kathryn Straughan. Her manager was Alison Foreshaw. Miss Cox is the Head of Service. Mr Baird is the Director of Children’s Services.
The body of the report had as was clear to any reader, an overall negative view of the foster carers becoming Special Guardians, yet the recommendation was that they should be Special Guardians.
Had pressure been applied?
145. Kathryn Straughan had been the interveners’ social worker but was reassigned in June 2019. After Child C’s death she was asked to update her May 2019 special guardianship assessment report by her team manager, Alison Forshaw. She had instructed her to undertake the update as a paper-based exercise and that she was not to visit the interveners.
Ms Straughan believed there were some positives about the children’s placement with the interveners: the children were settled and felt part of the family, the children, however, struggled with their sense of identity, with their views about their parents and wider family and with the issue of contact. These concerns and the concerns about the attitude and approach of the interveners towards the birth family escalated after Child C’s death. Ms Straughan did not consider that the interveners genuinely believed that contact with the parents and their wider family was in the best interests of the children.
She told me that she had real reservations about SGOs being made in favour of the interveners. She did not consider this order to be in the best interests of the children.
As foreshadowed in a supervision meeting with Ms Forshaw on 3rd October 2019, on 10th October Ms Straughan sent her updated assessment report to Ms Forshaw by email. The body of the report was largely negative about the interveners. She concluded with a recommendation that the children should remain the subject of care orders, not SGOs. She asked Ms Forshaw whether she could leave the alternative to the court of making SGOs on the basis of a comprehensive and detailed special guardianship support plan.
On 11th October 2019, Ms Forshaw emailed Ms Straughan in response and said she had to ‘make a recommendation’. Ms Straughan then resigned. Consequently, Ms Straughan, without materially changing the body of her first updating report, changed the recommendation of the report to one of supporting the making of SGOs. This was sent to Ms Forshaw on 28th October 2019.
She told me she had the clear impression that Ms Forshaw and Ms Cox supported the making of SGOs in favour of the interveners. She felt she had been directed to recommend SGOs to be the right solution and she had changed her recommendation so that it was aligned with the ‘local authority’s view’.
I note that when Ms Forshaw emailed the updated report on 23rd October to Ms Cox, she had replied that she was pleased that Ms Straughan had made a recommendation.
I further note that Ms Straughan told me that this was the first and only time she had been asked to prepare a paper-based special guardianship assessment report or an updated report.
(I note in passing that this was pre-Covid, so there were no public health reasons for not doing the assessment face to face)
153. Ms Forshaw stated that concerns about the children’s placement with the interveners were magnified after June 2019. In response to the question that these concerns were incompatible with an SGO she replied, ‘…it feels like that now!’ I do not understand why ‘it did not feel like that’ in October 2019.
She said she could not recall instructing Ms Straughan to confine her updating assessment report to a paper-based exercise. She continued that she had no view on what the ultimate recommendation should be and that she had not put pressure on Ms Straughan to make a recommendation in favour of SGOs. When pressed on this issue by Mr Goodwin QC, leading counsel for the mother, Ms Forshaw accepted that in her first updating report Ms Straughan had made a clear recommendation, namely that the children should remain the subject of care orders. So, Mr Goodwin QC asked why in her email of 11th October 2019 she had asked Ms Straughan to make a recommendation? The best Ms Forshaw could do was to say that now her request did not make sense, but she added she had not led Ms Straughan to make a recommendation in favour of the making of SGOs.
Ms Forshaw told me that she felt the first version of the updating report had been unfair to the children and the interveners. I struggled with understanding this answer because the only substantive change between the two versions was that the later supported the making of SGOs. When asked if she considered the second version fairer only because it supported the making of SGOs, Ms Forshaw could not give a satisfactory answer.
When it was suggested that save for the first updating report having been emailed to Ms Cox, Ms Forshaw had sought to suppress the first version, Ms Forshaw said she thought both the first and the second updated reports had been sent to the legal department. Only the second version was filed at court and served on the parties. I have not seen any evidence of the first version having been sent to the legal department. Indeed, the first the court and the other parties knew of the first version is when Ms Straughan’s statement of February 2021 was filed and served by the local authority.
When Ms Forshaw was asked if she had asked Ms Straughan how her visits to the interveners were progressing, she said she did not know if she had done so. When asked if she had raised with Ms Straughan why there was not a single reference to any visits to the interveners in either of the first or second versions of the report, she claimed she had. Unfortunately, she had not recorded a single one of these discussions.
Ms Forshaw agreed that on one view the first version was a really poor assessment report. When asked why then had she signed off the second version when it was not materially different to the first one save for its recommendation, she simply said she had been under pressure to file the report with the court.
Ms Forshaw was recalled to give evidence after Mr Baird had given evidence. She was asked again whether she had asked Ms Straughan about her visits to the interveners; she said she could not remember. When asked if she had asked about the interveners’ reactions to her visits, she first replied no and then said she could not remember.
She said she did not think that Ms Straughan had changed her recommendation to appease her or Ms Cox. She was asked why she had signed off the second version when the body of the report did not support the recommendation. Once again, the best Ms Forshaw could do was to reply that the report just had to go to the court.
Towards the end of her evidence Ms Forshaw was pressed again about whether she has spoken with Ms Straughan about her visits to the interveners. This time she said that maybe she just did not ask her.
Miss Cox could not recollect (an answer frequently used by this witness) whether she had seen the first version of the updating assessment report. She could not recollect whether Ms Forshaw had told her that this first updated report did not support the making of SGOs. She said she had not read the second version of report save for reading the recommendation. Having now read this report in full she did not invite the court to rely upon this report in support of making SGOs in favour of the interveners.
Ms Cox confirmed that prior to early 2017 no life story work had been undertaken in the preceding five years with any of the children. She said that after a few months the work of Janet Watkins, who undertook the work with the children, was paused to give the children a break. It never restarted.
No therapy was ever undertaken with the children. Ms Cox was asked what oversight she had given to this case. She replied that the case had fallen off her radar because of the breadth of her workload, although she conceded this was no excuse. I do not understand how this high profile and complex case which had caused serial concerns for many professionals working with the children and with the interveners could ‘fall off the radar’ of the Head of Service.
She conceded that the children, the mother and the interveners had been badly served by this local authority. She agreed that accordingly the children had suffered for which she had real regret.
Like Ms Forshaw, Ms Cox was recalled after Mr Baird had given evidence. She continued to assert that as the Head of Service, she had not needed to read either the first or second versions of the updated assessment reports because they had been signed off by the team manager. When Mr Baird’s dismay at this state of affairs was put to Ms Cox, she asserted that the director of children’s services did not know the usual practice adopted in Herefordshire.
When asked whether she should have read the entirety of both versions of the updated report she said that she wished she had. Ms Cox accepted that the ‘safety net’ oversight (i.e. the quality assurance check), which Ms Forshaw and herself should have provided, failed in this case.
In light of the observations of HHJ Plunkett recorded in the order of 2nd December 2016, Ms Cox was asked what consideration had been given to moving the children to an alternative foster placement. She gave the startling and deeply concerning one-word answer, ‘none’.
This is already painful reading, but it gets worse
177.If Ms Forshaw had not instructed Ms Straughan to undertake a paper-based updated assessment report, I cannot begin to understand why she did not ask Ms Straughan about how her sessions with the interveners were progressing. I cannot accept that Ms Forshaw had simply forgotten any of these alleged conversations.
Ms Forshaw’s evidence about why she had sent an email to Ms Straughan on 11th October 2019 asking her to make a recommendation when, as she accepted, Ms Straughan had made a very clear and strong recommendation in her first version of the updated report, was most unsatisfactory. Her evidence leads me to only one conclusion, namely that she was directing Ms Straughan to produce a report recommending the making of SGOs.
I am fortified in coming to that conclusion by the fact that despite knowing the substance of the body of the second version of the updating report which did not support the recommendation made, she submitted the report to the legal department for filing at the court. She did not raise this disjoint with Ms Straughan because she had the recommendation she wanted.
Likewise, the only credible reason for Ms Cox limiting her reading of the second version of the updating report to the recommendation is because she had got the answer she wanted, namely a recommendation in favour of the making of a SGO. Hence her subsequent email to Ms Forshaw that she was ‘pleased’ that Ms Straughan had been able to make a clear recommendation.
207. My findings of fact in relation to this issue are set out in paragraphs 177-180 above. In summary I found that:
i) Ms Straughan was instructed by Ms Forshaw to undertake a paper only exercise in order to update the special guardianship assessment report of May 2019;
ii) she was instructed by Ms Forshaw not to visit or contact the interveners and/or the children for the purposes of completing her updated report;
iii) Ms Straughan came under pressure from Ms Forshaw and Ms Cox to produce an update which recommended the making of a SGO in respect of the children in favour of the interveners;
iv) I do not find she was instructed to make such a recommendation, but she knew both of them supported the making of a SGO in favour of the interveners; and
v) Ms Forshaw signed off the 22nd October 2019 report and arranged for it to be filed at court and served on the parties when she knew that the observations, opinions and conclusions set out in section C of the report did not support or provide a rational basis for the recommendation in favour of the making of a SGO. Indeed, those matters of substance set out in section C only supported the dramatically opposite recommendation that a SGO should not be made.
The findings about the failure of the Local Authority to support the children and their foster placement and to properly and accurately reflect on the findings that were made and not made in the fact finding hearing (allowing the view to propagate that the children had been sexually abused when the Court had found that they had not) are set out in a detailed schedule of findings as an appendix to the judgment.
The children remained subject to Care Orders, with plans for therapy and reestablishing contact with the mother and very clear oversight by the Court of the next stages of the process.