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Serious case review – can a failure to call one be judicially reviewed?

 

In this case, Deeqa Mohammed v Local Safeguarding Children’s Board of Islington 2014   , the mother of a child, Nawaal Mohammed sought to judicially review the decision of Islington’s Local Safeguarding Children’s Board NOT to hold a Serious Case Review, following Nawaal’s tragic death at the age of 7 years and 4 months.

 

http://www.bailii.org/ew/cases/EWHC/Admin/2014/3966.html

 

[In this post, contrary to my usual practice – the underlining here is all to show the Court’s emphasis rather than my own]

 

Nawaal had fallen from the window of her home on the 11th storey of a block of flats.

 

The mother was claiming that this death had been as a result of neglect and mistakes by professionals and that the Regulation governing Serious Case Reviews when talking of ‘abuse or neglect’ should cover neglect and abuse by professionals as well as the child’s carers.

 

Reg 5 1(e) of the LSCB Regs 2006, setting out the functions of the LSCB

 

1(e) undertaking reviews of serious cases and advising the authority and their Board partners on lessons to be learned. .

 

And

 

Reg 5(2) For the purposes of paragraph (1)(e) a serious case is one where—

(a)abuse or neglect of a child is known or suspected; and .

(b)either— .

(i)the child has died; or .

(ii)the child has been seriously harmed and there is cause for concern as to the way in which the authority, their Board partners or other relevant persons have worked together to safeguard the child.

 

 

 

 

The importance of this is that if either of those criteria is met, the LSCB MUST hold a Serious Case Review – they have discretion about other cases, but in that type of case they HAVE to hold the Serious Case Review.

 

 

 

At the outset of the hearing, leading counsel for the Claimant, Mr Ian Wise QC, indicated that the Claimant wished to amend/refine her claim to substitute for the mandatory order (see [2] above) a declaratory order in these terms:

 

“a declaration that known or suspected abuse or neglect of a child in Regulation 5(2)(a) of the Local Safeguarding Children Board’s Regulations 2006 includes known or suspected abuse or neglect on the part of a public body”.

This re-formulation of the claim had been presaged in the original grounds of the claim (per §2(ii) of the Claimant’s Grounds) viz:

 

“Clarification of the law is necessary to ensure that failings including neglect of children on the part of public bodies give rise to a duty to instigate serious case reviews where the child dies or is seriously harmed and there is concern at the way the relevant agencies have worked to safeguard the child.” (my emphasis)

In essence, the Claimant wished to contend that the London Borough of Islington – either through its children’s services, its disabilities’ services and/or housing department – had been responsible for actual or suspected ‘neglect’ of Nawaal. In the circumstances, it was to be argued, the LSCB was required to commission an SCR.

 

 

The family had been known to Social Services and other professionals, who had been visiting – in part due to Nawaal’s challenging behaviour on the autistic spectrum, and the ‘smoking gun’ is probably this line from a social worker’s recording of a visit.

 

 

On numerous occasions in the period between 2010 and 2013, it appears that LB Islington was advised of Nawaal’s lack of safety awareness, her unpredictability, her craving for being outside and for climbing and exploring, and her challenging behaviour. In February 2013, the Claimant’s solicitors threatened LB Islington with judicial review proceedings for its failure to carry out a proper needs assessment for the purposes of her housing application. The various communications from the interested agencies (or at least some of them) are detailed in the Grounds of Claim; I have read those, together with the Claimant’s statement, with care although it is unnecessary for me to rehearse the contents more fully here. It suffices for me to reproduce a communication written by LB Islington on 25 March 2013, in which it was said that:

 

“Nawaal has no awareness of danger and enjoys climbing and jumping… if the window is open just a crack she will try and get out through it regardless of where it is … the longer Nawaal is inside the more frustrated she gets … she has no awareness of danger and enjoys climbing… This is a situation that is far too dangerous to continue this way. It is not a case of if Nawaal will fall but a case of when.” (emphasis added)

 

 

 

As the Judge said, this appalling prophecy sadly came true three months later.

 

The agencies looked at this, and considered whether to hold a Serious Case Review, but in effect decided that the death had not occurred as a result of violence, abuse or neglect. [Note here what the Coroner is reported to have said at the inquest]

 

Following Nawaal’s death, the Defendant arranged and held ‘Rapid Response’ meetings (28 June 2013 and 28 July 2013) to evaluate the circumstances of this tragic event, and in order to establish if there were (and if so what) lessons to be learned. A Multi Agency Management Review was convened, which ultimately reported on 22 February 2014.

 

On 4 September 2013, Dr. Tony Wheeler, a community paediatrician and Chair of the ‘Rapid Response’ meetings (as designated doctor for child death and safeguarding, with responsibility for reviewing services provided for all children in the area of the Defendant who have died), wrote to the Claimant attaching his report for the Coroner; in that report it was said that:

 

“The issues identified were focused on housing, and abuse and neglect were not identified as factors in Nawaal’s care or death. The consensus at both Rapid Response Meetings was that the requirements for a serious case review were not met.” (emphasis added)

 

In this regard, the reference in the report to the absence of ‘abuse and neglect’ plainly, it seems to me, referred to the provision and quality of parental care. Dr. Wheeler’s report concludes by indicating that ongoing consideration of the case would pass to the Islington Child Death Overview Panel (CDOP). Later (December 2013) Dr. Wheeler indicated that the CDOP would not review the case further until the post mortem results were obtained.

 

An inquest into Nawaal’s death had been opened; this process concluded in February 2014, with the Coroner finding (so I am advised) that “the fall was foreseen by various organisations working with the family who had been communicating concerns to the council since May 2010”. The verdict was one of accidental death.

 

 

The mother invited the LSCB to reconsider and to hold a Serious Case Review and when those discussions did not bear fruit *, issued her claim for judicial review.

 

 

(*actually, it’s a bit more complicated than that – after the claim was issued, the LSCB did agree to hold the Serious Case Review, but Ms Mohammed and those advising her felt that there was a broader issue of principle here and that it would benefit other families to have the Court give a declaration that in a case where it is alleged or suspected that neglect by professionals was a contributory factor, a Serious Case Review ought to be convened. NPIE in the paragraphs below is the National Panel of Independent Experts, a body from whom the LSCB sought advice)

 

The NPIE was duly instructed on 29 July 2014 by Alan Caton, the Defendant’s independent chair. The Defendant invited the Claimant to withdraw the claim, but she declined to do so. The hearing of the Claimant’s renewed oral application for permission to apply for Judicial Review was scheduled for 12 August 2014; this hearing was vacated by Nicola Davies J. when it transpired that the NPIE was to meet on the preceding day. In acceding to the application to adjourn, Nicola Davies J directed that:

 

“Within 14 days of being notified of the view of the Independent Panel of Experts … the Claimant shall notify the Court whether she wishes to proceed with the claim; if so the permission application to be listed as soon as possible thereafter”.

On 18 August 2014 the NPIE wrote to the Defendant in these terms:

 

“Following very careful consideration of the information provided at their meeting on 11 August, the Panel are strongly of the view that there is clear evidence of Islington LBC’s failure to protect the safety and wellbeing of child Nawaal. However, on the specific issue of whether an SCR is required, they concluded that in the apparent absence of relevant case law, or an explicit policy direction from the Department for Education as to whether a body such as a local authority can be guilty of neglect within the remit of Regulation 5(2)(a) of the LSCB’s Regulations (2006) as set out in Working Together 2013, it is not possible for the Panel to be definitive as to whether the criteria for an SCR are met. The Panel take the view that the particular issues raised by this case are more appropriately addressed either with a determination in the courts or by a clear policy directive from the Department for Education.” (emphasis added).

 

That advice was provided to the Claimant on 26 August 2014 by e-mail. On the following day, 27 August 2014, the Defendant’s solicitor wrote further to the Claimant’s solicitors in these terms:

 

“Further to my email … I have received the Defendant’s instructions. Yesterday morning the Board met to consider the Panel’s views. The Board has considered those views as sought by its referral to the Panel. With those views in mind, the Board will exercise its power to commission a Serious Case Review in this case, notwithstanding there is no duty to do so.”

 

On 29 August 2014 the Claimant’s solicitors, in acknowledging this significant development, wrote to the Defendant’s solicitors:

 

“The position generally remains unsatisfactory as in the light of the advice of the Expert Panel there is plainly a need for clarification about the circumstances in which an SCR should take place, we therefore consider that there is a real public interest in this case continuing and intend to seek a declaration as to the circumstances when a Serious Case Review should be instigated. … We write to enquire whether your client will be prepared to agree that the litigation should continue … We consider that the Secretary of State should be joined and it would be for him/her to respond substantively to the claim for a declaration. … This is obviously an unusual case. We invite you to consider our proposal carefully.”

 

On 8 September 2014, the Defendant’s solicitor sent a detailed reply rejecting the proposal that the litigation continue, and invited the Claimant to abandon the application “without more ado”. Not insignificantly, it further indicated that “the Board will entertain any contentions of institutional neglect pursued before it”; the Defendant argued that the claim was now “academic”, and without merit. Notwithstanding these representations, on the same day the Claimant notified the court the she intended to prosecute her claim.

 

 

 

The judicial review here was refused, for the following reasons [underlining in this bit is mine, for emphasis]:-

 

 

I refuse this application for permission to apply for judicial review. This decision, inevitably starkly expressed, does not reflect my considerable sympathy for the Claimant in suffering such an appalling family tragedy in the circumstances described earlier in this judgment. The refusal of this application should not be treated or understood as any indication of my views about the action or inaction of the LB Islington, or the associated relevant agencies, in the discharge (or otherwise) of their responsibilities towards the Claimant and her children.

 

However, I have reached this decision clearly for the following reasons:

 

  1. The claim as pleaded in its revised form does not enjoy a reasonable prospect of success; ‘neglect’ in regulation 5(2) does not, in my judgment, cover ‘neglect’ by a public body in failing to discharge its safeguarding duties to a child;
  2. The claim is academic, the Defendant having now agreed to conduct an SCR, which will include consideration of “institutional neglect”; there is insufficient justification in permitting the claim to proceed when there is now no lis between the parties;

iii. I am of the view that if consideration is to be given to a potentially wider remit of regulation 5(2)(a), this should be considered by the Secretary of State in the Department for Education in the first instance, not the court;

  1. The claim is premature; until the SCR has taken place, and/or the Secretary of State has considered the issue, there is no proper framework or decision, within which to consider this point of principle.

 

 

 

[As an academic exercise, the Court’s analysis of when it is proper for a Court to resolve an ‘academic’ argument between the parties is interesting – in effect it turns on this, from Secretary of State for the Home Department ex parte Salem 1997 :-

 

“The discretion to hear disputes, even in the area of public law, must be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so as for example (but only by way of example) where a discrete point of statutory construction which does not involve detailed consideration of the facts, and where large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future”

 

And thus, having established that the Islington LSCB were going to conduct a Serious Case Review, the case itself was an ‘academic’ exercise and one which should only be carried out if it was going to have a bearing on a large number of similar cases, which it wasn’t]

 

 

In relation to the third limb – that any such change to the Regs should be for the Secretary of State, the Court noted that coincidentally the Secretary of State had given that same day of the hearing a speech on the issue of Serious Case Reviews and reform

 

My conclusion on this aspect was fortified by my discovery that, on the day of the oral hearing of this application before me on 12 November, Edward Timpson MP, Parliamentary Under Secretary of State for Children and Families, was coincidentally addressing the LSCB Chair’s annual conference in these terms:

 

“I’m still concerned about cases where SCRs are not even being commissioned. About times when debates over semantics get in the way of finding out what went wrong. This may not happen that often, but it happens often enough for me and the panel to be concerned. So, following the panel’s recommendation, we’re planning further clarification of ‘Working together to safeguard children‘, so it will now include guidance about what ‘serious harm’ actually means in the context of making decisions on whether or not to commission an SCR. And to help you with information sharing, we’re planning to clarify in Working Together the need for local authorities to notify serious incidents.” (emphasis added) (source: MoJ).

 

This announcement followed, and specifically drew upon, the first annual report of the NPIE on Serious Case Reviews (July 2014) (DFE-00531-2014) (a report which was published shortly before the NPIE sent out its advice letter in this case, the contents of which are set out at [26] above). In that report, the panel had made the following significant observations as follows:

 

“The panel’s view is that opportunities to learn from mistakes are being overlooked in the argument over where the SCR initiation line is drawn. It is essential that everyone sees lessons for children’s protection (looking backwards and forwards) as the central issue, not the need to abide only by the letter of the law.” [19]

“The panel would encourage more LSCBs to consider carrying out a proportionate SCR, even in cases where the statutory criteria are not met, rather than another type of less formal review, so lessons may be understood and shared more widely. Indeed, it is their view that use of a range of investigative tools and techniques to carry out a review in a way which is flexible and relevant to the individual case circumstances may be more appropriate than a more fixed methodology” [20].

 

 

And that thus, the judicial review claim could now be considered premature given that the changes sought might be addressed in the Secretary of State’s forthcoming guidance. It is noteworthy that both the Secretary of State and NPIE have urged LSCBs not to shelter behind the technicalities and semantics of the Regs and to hold Serious Case Reviews or something similar where there are lessons to be learned.

 

 

[It may be occurring to lawyers with a civil background that an alternative route to judicial review might have been a claim for negligence, given that ‘smoking gun’ recording and the failure to take action in the three months before that appalling prophecy came true (coupled with the Coroner’s remarks). Not necessarily easy to run a negligence claim and I couldn’t possibly make any predictions about whether it has legs or not. I’m pretty sure that as the mother was represented by a Silk in these proceedings, it is an issue which has been given some considerable thought]

 

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serious case review versus judicial review – a (cough) review

Who ‘owns’ a Serious Case Review, and what rights or  powers do the Courts have over its disclosure?

 

X (A child) 2014

http://www.bailii.org/ew/cases/EWHC/Admin/2014/2522.html

 

I do complain about the President quite a bit, but the one thing you could never accuse him of is being work-shy. This is yet another very tricky judgment that he has taken on – whilst still having two insanely difficult judgments still to produce –  Q v Q (how to fund litigants whose article 6 rights would be breached by them being unrepresented) and the fallout judgment from Cheshire West (how are the Court of Protection going to deal with the HUGE volume of additional cases that arise from the Supreme Court’s decision on deprivation of liberty).

 

This one relates to a child, X, whose mother stabbed him when he was about ten years old. He is now thirteen. Those care proceedings ended with the making of a Care order, hotly contested by the father, who has been in one form of litigation or another about this perceived injustice over the last three years.

Outside of the Court case itself, the Local Safeguarding Children Board (LSCB) – which is a group of senior representatives from all the relevant agencies in each local authority area (police, schools, health, social services etc), held a Serious Case Review.  These Serious Case Reviews are intended to be a scrutiny of what happened in the case and specifically whether agencies made mistakes, could have predicted what would happen, could learn lessons for the future, might need to change some policies and perhaps even whether someone professional is badly at fault and to blame.

 

The general rule and principle these days are that these Serious Case Reviews are to be published, although with names of children and parents anonymised. This in part, emerged from the public disgust at Baby P and the desire that these exercises were available for all to see. There’s a debate for another day about whether that transparency is a good thing, or whether it inhibits the ability of each agency to properly lay out their shortcomings.

 

The father contributed to this exercise and saw the report, but didn’t have a copy of it, and it was not made public.

 

The LSCB rationale for that was this :-

 

  • The LSCB received the overview report and executive summary on 15 July 2011. The LSCB considered the issue of publication of the reports, taking account of the letter of 10 June 2010, decided that there were such compelling reasons in this case and concluded that any decision on publication should be underpinned by the impact it was likely to have in relation to X’s current and future well-being and that the basis for this decision should be informed by advice from the psychiatric practitioners involved in his care. After careful deliberation the LCSB concluded that the overview report should not be published; that it would consider whether to publish the executive summary following a psychiatric assessment of the potential impact on X of so doing; and that the local authority would make the overview report and executive summary available to the court as part of the current care proceedings in relation to X so that all parties might have access to the relevant background information and that this be communicated to X’s parents.

 

 

 

  • Following a further psychiatric assessment of the situation in relation to X, the independent chair of the LSCB, Mr D, wrote to OFSTED on 26 October 2011:

 

 

“The Board has now been advised by the psychiatrist treating X that it continues to be her considered opinion that the publication of any document relating to the Serious Case Review which would cause comment or discussion in the media or local community would be seriously detrimental to X’s recovery. She has advised that although X is making progress his recovery is likely to be protracted and he is about to begin a course of psychotherapy that is likely initially to be unsettling for him. It is her opinion therefore that the Executive Summary should not be published.”

 

Two competing factors are being balanced – the interests of transparency and open public debate versus the impact on the child.  That underpins most of the transparency debate (and given the President’s well-known views on transparency, the LSCB must have been slightly fearing the worst when the case was listed before the President. That might be why they shelled out for a QC to represent them…)

 

The father’s application was a free-standing one under the Children Act 1989, but on analysis, the President found that this could not be right in law, and that the proper legal mechanism (indeed the only one) would be a judicial review of whether the LSCB had behaved in an unreasonable way (specifically a way that no reasonable body in their position could have behaved) in making the decision not to publish this Serious Case Review

 

 

  • In the final analysis the father’s application turns on quite a narrow point.

 

 

 

  • The first thing to appreciate is that the LSCB is a public body, juridically distinct from and wholly independent of the local authority. It exercises public functions in accordance with the statutory scheme to which I have already referred. In accordance with that statutory scheme it is for the LSCB, not the local authority and not the court, to decide whether or not to publish the overview report and the executive summary: see Re X and Y (Executive Summary of Serious Case Review: Reporting Restrictions) [2012] EWCA Civ 1500, [2013] 2 FLR 628, paras 7, 58.

 

 

 

  • The second thing to appreciate is that this is, as Judge Wildblood correctly said, a free-standing application. It is not an application made in pending proceedings for disclosure of documents into those proceedings. It is not a case (as Re X and Y (Executive Summary of Serious Case Review: Reporting Restrictions) [2012] EWCA Civ 1500, [2013] 2 FLR 628, was) of an application for a reporting restriction order to restrain publication of a document. It is an application by the father for an order requiring the LSCB to disclose to him a document which the LSCB in exercise of its statutory functions has decided should not be disclosed to him except upon terms that he is not willing to accept. It is, in other words, an application challenging the LSCB’s decision, a matter therefore, as Judge Wildblood said, of administrative law.

 

 

 

  • Such a challenge, in circumstances such as this, can in my judgment be made only by means of an application for judicial review in accordance with CPR Part 54. It cannot be made in the Family Court, nor in the High Court except in accordance with CPR Part 54. On that short ground, and irrespective of the factual merits, this application is misconceived.

 

On that basis, the President looked at the father’s arguments

 

  • The father has set out, both in his written statements and in his oral submissions, the various reasons why he wants a copy of the overview report. He says it should be published in the interests of transparency and so that public officials can be made accountable. He says that he should be allowed to study it with more time and scope for careful analysis and understanding than if he is merely allowed to read it at the local authority’s offices. He believes it contains material errors which should be corrected; he wants to ‘set the record straight’. He believes it contains material that will enable him to reopen the care proceedings by way of a further appeal or a renewed application to discharge the care order (thus correcting what he believes to have been a miscarriage of justice) and which may assist him in bringing a civil claim. He says that as X’s father he should be allowed to have a copy.

 

 

 

  • Those are all very understandable reasons why the father should be seeking the relief he is, but none of them demonstrates any proper basis of challenge to the decisions of the LSCB, whether the original decision not to publish or the decision explained in Mr D’s letter of 19 September 2012. As Mr Tolson put it, and I can only agree, the father does not identify, still less demonstrate, any flaw in the LSCB’s decisions or decision-making process.

 

 

With that in mind, the father’s application for judicial review was refused – the only crumb of comfort being that one of the arguments deployed by the LSCB was crushed from a great height by the President

 

  • I have set out the reasons given at the time by the LSCB for its decision not to publish (see paragraphs 6-7 above) and for its later decision not to allow the father a copy (paragraph 10). Those reasons are clear and readily understandable. They disclose, in my judgment, no arguable error of law. They set out matters, including in particular the advice of X’s treating psychiatrist, which plainly entitled the LSCB to conclude, as it did, that there were indeed the “compelling reasons” which had to be demonstrated if there was not to be publication. The LSCB plainly applied its mind carefully to all the relevant material and to the key issue it had to decide. Its process cannot, in my judgment, be faulted. It is impossible to contend that its decisions were irrational. Nor is there any arguable basis for saying that it wrongly struck the balance as between the various competing demands it had to evaluate: the right of the public to know; the quite separate right of the father to demand not merely access to but also to be supplied with a copy; and, most important of all, though not of itself determinative, the compelling demands of X’s welfare.

 

 

 

  • Mr Tolson also submits that permission to apply for judicial review should be refused because the father’s claim lacks any practical substance, because he cannot demonstrate, so it is said, how any flaw in decision-making might materially affect him, nor can he demonstrate why he needs a copy of a document which he has been able to read on three occasions. With all respect to Mr Tolson I find this most unconvincing. I would not have been prepared to refuse permission on this ground. But this does not, of course, affect the ultimate outcome given my conclusions in relation to Mr Tolson’s first two arguments.