The High Court decision in Surrey County Council v AB and Others 2014
This is a judgment which might be pertinent for an elephant in the room issue since the Family Justice Review started moving us away from independent experts. Once you take that expertise out of court rooms and decisions about families, what is filling that gap? Is it sufficient to treat all social workers as experts without considering the huge differences between an experienced and analytical social worker and a relative newcomer?
The writer is aware of a pending article for Family Law Week prepared by Miss Battie of counsel, which touches on this very issue.
In this case, the Local Authority ended up apologising, in writing, to the parents and grandparents because the social worker they had been allocated was “at the bottom of her learning curve”
[Just like any profession, newcomers start out new and have to gain experience by doing it. Every social worker has to have a first case, a first contested case, a first adoption case. The significance of course is that adoption(or separation of a child from birth parents permanently) is, as the Supreme Court reminded us last year, the most dramatic order that can be made in family Courts and it requires a robustness and rigour in the analysis and decision-making if it is to be done fairly. I don’t mean to suggest that all experienced social workers get everything right, nor that all new social workers get everything wrong, rather that when you are looking at a social worker having the entireity of the assessment process on their shoulders rather than having experts to consult with, the individual ability of that social worker comes into play far more than it did two years ago.]
“That document repeats the apology given to the parents and paternal grandmother for them being at the bottom of the “learning curve” for the allocated social worker.”
[Any underlining is mine, for emphasis]
The child in this case was 2 ½ years old. He had significant needs
X has complex health needs. He was born with hypertonia, suffers from a visual impairment Peters Anomaly Type 1/Anterior Dysgenesis Anomoly, has significant motor delay, scoliosis of the spine and suffers from digestive difficulties. As a result of these health difficulties he requires a standard of care that enables his particular health needs to be met. Such care includes 24 hour postural support, careful monitoring of his diet and significant care when feeding and essential auditory and tactile stimulation to ensure his emotional needs are met and to compensate for his loss of other senses. He has been placed with foster carers since May 2012 under a section 20 agreement.
The parents also had significant needs
10. His parents have their own health difficulties. His mother has cerebral palsy involving weakness in one arm and both legs and a possible mild learning disability. The father was diagnosed as a child with ADHD and is said to have Asperger-like symptoms, although there is no formal diagnosis.
The quality of the assessment and interventions that the parents received were a critical part of the case (and given that the Local Authority apologised in writing, you can make an informed guess that there was some judicial criticism of them)
11. One of the central issues in this case has been the adequacy of the assessments of the parents as to their capacity to care for X. Put simply the parent’s case was that the local authority comprehensively failed in their duties to support X’s continued placement with his parents. It is submitted there has been an unfair process resulting in a catalogue of missed opportunities and inadequate assessments, which have resulted in the parents now being at a significant disadvantage in putting themselves forward to care for X.
12. The local authority acknowledges some of their procedures and assessments have been inadequate, but submit the basic factual background has not changed. This is a young boy who needs exceptional care due to his particular needs and the combination of the parent’s volatile relationship and the father’s inability to provide emotional care for this young boy mean his parents were unable to provide the care he needed.
The Judge follows through the chain of mistakes and missed opportunities
17. A core assessment was started on 23 March 2012 and completed on 25 April 2012. Curiously the core assessment under “Agencies contributing to core assessment” records “No Key Agencies identified”. Under the section asking whether there were any disability or communication issues for the child or parents are to be recorded the box is left blank. This is despite it then being known about some of X’s health difficulties and the body of the assessment refers to his ‘global delay’, the mother having cerebral palsy and learning difficulties and the father Aspergers. The assessment also records in relation to the mother that she was ‘unable to use public transport due her physical disability’. The assessment goes on to record under parents’ views ‘[the parents] do not believe that their difficulties will impede on their capacity to care for or meet their son’s needs and their wish for him to be returned to their care in the very near future’. The parents are recorded as not agreeing with the local authority’s recommendation that X be made the subject of a child protection plan, however it goes on to record that both parents ‘are keen to work with all agencies so that they will be able to care for their son’. In the decision section the ‘No further action’ box was ticked.
18. This was not a promising start. On the face of the document it seems incomprehensible that the core assessment failed to identify the disabilities and communication difficulties that were obvious on the face of the assessment. Of the ‘tick box’ decision options there was included ‘specialist assessment’ and ‘referral to other agency’ yet despite identifying difficulties which required further assessment and the parents expressing their willingness to work with agencies no further action was taken. It is suggested that this was one of the first lost opportunities to support the parents in their wish to care for X. I agree.
Core group meeting
19. There was a core group meeting on 27 April 2012 attended by the parents, maternal grandparents, allocated social worker Ms Perrin, the ATM Mr Taljaard, Ms Livingstone the health visitor and Ms Murdoch (described as other social care staff). The minutes dated 8 June 2012 (some six weeks later) record ‘a residential unit for AB and X was discussed with AB stating that she is not keen for this to happen as this would put further stress on [the parents] as a couple’.
20. At this time X remained in the care of the mother in the maternal grandparents’ home. After the parents reported the mother’s brother’s use of pornographic sites X was placed with foster carers pursuant to section 20. There is no evidence of what, if any, other options within the wider family were explored to enable X to remain being cared for by his mother.
Allocation of new social worker
21. Ms Kim Horrox became the allocated social worker on 29 June 2012. She took over from Claire Stevens. Garth Taljaard was the ATM and remained so until Ms Grindon took over in January 2013, she remains the ATM to date. Ms Horrox qualified in 2011 although she had some previous social work related experience. This was her first case that resulted in care proceedings. By this stage X had been with the foster carers for six weeks.
22. Ms Horrox was clear in oral evidence that at the handover meeting in June 2012 she was informed that a residential assessment had been refused by the mother and was not being further explored. However, this is not consistent with other documents at the same time which seemed to indicate this issue was being actively pursued. There is a record of a discussion with the mother on 15 May 2012 in which she says she would rather go to a mother and baby foster home or residential unit than go back to her parents’ home for further assessment. A letter from the paediatric dietician to the consultant paediatrician on 24 May records that the mother was ‘awaiting a mother and baby placement in foster care for her and X’, it was mentioned as being the preferred plan in a meeting with the safeguarding nurse Mel Baxendale on 29 May 2012 and on 22 June 2012 there is an email from Mr Taljaard ATM after the review CP conference stating that the team manager and area manager have agreed a care plan that allows mother and baby to be placed in an appropriate residential unit for further assessment. This is said to be a further lost opportunity, I agree.
Assessment by the new social worker
24. Ms Horrox stated that on taking the case over she wished to conduct her own assessment of the parents and make her own judgment. She met with the parents on 3 July and on 17 July a youth support worker informed Ms Horrox that the mother was declining support from adult services. Ms Horrox accepted in oral evidence that she should have been more creative in helping the mother access appropriate support.
Assessment of the parents
29. In February/March 2013 there was a referral by Ms Horrox to the adult services team for an assessment to be conducted as the parents were said now to be consenting to such an assessment. It is accepted by Ms Horrox that this referral was not accepted by the relevant team until 23 September 2013 some 7 months later. Ms Horrox said in evidence that having made the referral she chased it three times and on the third time was told it needed to be sent to the ‘transition team’, that required a different referral form which she completed and sent. That was apparently deleted by mistake, once that was discovered a further referral was sent and then, finally, it was ‘actioned’. I agree this was another lost opportunity.
Delay in issuing / drift in section 20
30. The care proceedings were issued on 25 March 2013, 10 months after X had been placed with foster carers and over 4 ½ months after the local authority issued letters of intent to the parents informing them of their intention to issue proceedings. Ms Horrox frankly accepted in evidence this delay was unacceptable, she acknowledged it was her first case where care proceedings had been issued and had been a ‘steep learning curve for her’. She agreed with Ms Jenkins on behalf of the father that it was not fair the parents were at the bottom of this learning curve she said ‘I apologise for it being at the expense of this family’.
Lack of supervision of the social worker
31. Despite the volume of material in this case and the length of the social work statements there is little, if any, evidence of effective supervision of Ms Horrox between June 2012 and September 2013. If there had been it would have been expected such unacceptable delays would have been picked up and effectively managed.
Failure to consider of all of the options
32. The local authority care plan at the time the proceedings were started was, in reality, adoption, although Ms Horrox said she kept an open mind. The discussions she had had with the mother at the PLO meeting in November was in the context of long term placement with Mr and Mrs SG, either under a care order, adoption or SGO. In her evidence Ms Horrox kept talking about ‘parallel planning’ but there was no evidence of any effective parallel assessment of the parents’ ability to care for X at the same time as investigating alternatives in the care of the local authority. That is what parallel planning means. It is right the mother is recorded at the meeting in November as effectively supporting the long term placement of X with Mr and Mrs SG but that was without legal advice and in circumstances where there was no evidence of any alternative involving X being cared for by his family being actively discussed at that time.
The social work assessment in proceedings being flawed
33. Following transfer of the proceedings to the County Court the first effective hearing was not until 13 August. HHJ Cushing case managed the four significant hearings between then and 17 October 2013 when the deficits in the assessments undertaken by the local authority became clear. In essence a parenting assessment had been undertaken by Ms Horrox without the benefit of any assessment from adult services, and the subsequent assessment by adult services was accepted by the local authority to be inadequate. The care plan filed by the local authority on 6 September sought care orders and placement orders with contact with the birth family 4 times a year and made no mention of any outstanding assessments
The failure of the professionals meeting to answer the agreed questions
34. The Professionals Meeting convened on 2 October 2013 was, unfortunately, not a good example of how such a meeting should be structured. The minutes record at the beginning the 8 questions that were described as the purpose of the meeting, which included such matters as what are the identified needs of the Mother and Father, now and in the foreseeable future? What services are required to meet those needs? How can those serves be provided? What services are therefore required to allow the parents to meet X’s needs? This is followed by 9 pages of typed notes of the discussion with a record at the end as follows:
Meeting confirmed that
1) X’s needs are such that he needs consistent care
2) CWD will not offer a service
3) SSD to arrange another TAC meeting (team around the child)
35. In her evidence Ms Horrox agreed with Ms Wiley, on behalf of the mother, that this meeting did not answer the questions at the beginning, although it is clear from the record of the meeting that both the CWD team and the AWD team informed the meeting that they could only do assessments of the parents if X returned home, which seemed an unnecessarily unhelpful and rigid position to take. This was another lost opportunity.
The failure of the community based assessment
37. The matter came before Mostyn J on 22 October 2013. He transferred the case to the High Court and the order provides for further comprehensive community assessments to be conducted with a recital recording that ‘the court indicating that there should be an independent element to the assessment and that if a different person from both the Children with Disability Team and the Adult Team undertake the assessment, this would constitute that independent element’.
38. A 6 week community based assessment plan was devised at the end of October which included the children with CWD and AWD teams. The assessments were completed in early December 2013 and involved nearly 100 hours of observed assessment by the various teams. The matter came before me on 18 December. I made directions leading to the final hearing on 12 March 2014. It transpired that Ms Gomesz carried out one of the assessments. She had been part of the earlier assessments, this was not made clear by the local authority in the evidence they filed. When the Children’s Guardian made enquiries she was informed there was no one else available and, in any event, it was too late to do anything about it. Whilst there is no criticism of the work undertaken by Ms Gomesz it was not what was intended by the order made by Mostyn J.
By the end of all of this (and a further independent social work assessment) consensus had been reached between the parties that the current foster carers who wanted to permanently care for X were the best people to do this.
This must be one of the most damning paragraphs I have ever read in a family court judgment. It is heart-breaking. We should NEVER be in this position.
48. I am satisfied the agreement reached in this case does meet X’s welfare needs. Whilst it will never be known if the correct assessments of the parents had been undertaken earlier, as they should have been, whether the parents would have been in a position to care for X the reality is now the comprehensive assessments undertaken since are united in their conclusions that the parents would not be able to care full time for X, even with extensive support being provided. Those assessments have been subject to the critical eyes of two independent people.
If all of that were not enough, the Court went on to make four particular findings about the failings of the Local Authority
(1) Delay generally and, in particular, in issuing proceedings
72. Some of the delays in this case have been wholly unacceptable. There are three specific examples that illustrate the point:
1) X was placed with foster carers in May 2012, care proceedings were not issued until March 2013 some 10 months later. The fact of that delay put the parents in an increasingly difficult position to seek to restore X to their care, as there was no structure to the period of time prior to the issue of proceedings and they did not have effective access to legal advice. To rely, as Ms Horrox did in her evidence, on the fact that they did not take up the offer of legal advice at the PLO meetings misses the point;
2) The decision to take care proceedings appears to have been made prior to November 2012 yet the proceedings were not issued until some 5 months later. Again leaving the parents in limbo with the local authority, in effect, recommending permanent removal of X from his parents care by way of adoption but the parents not being within the structure of legal proceedings to challenge that was unfair. I appreciate the mother at the November PLO meeting appeared to be endorsing the plan of the local authority, but that was without the benefit of independent legal advice and was perhaps illustrative of the internal struggle she has had about where X’s best interests lay.
3) The delay in the referral to adult services from February/March to September 2013 was unacceptable. It was caused by a catalogue of errors, a lack of effective co-ordination and structure between teams that should be effectively working together. There appeared to be no system in place to chase up referrals.
(2) Ineffective supervision, planning or co-ordination
73. This concern applies in almost every aspect of this case up until late October 2013. There appears to have been a chronic lack of effective supervision of the allocated social worker who was inexperienced and dealing with a complex case. I agree with the observations made by Ms Dove about the lack of effective multi agency planning which should have been in place immediately after the initial core assessment in April 2012. Again three examples well illustrate this area of concern:
1) The initial core assessment dated 25 April 2012 is on the face of it flawed. It details the disabilities both X and the parents have, yet fails to record that in the relevant box which specifically addresses that issue. It records the parents willingness to work with all agencies so that they will be able to care for their son and then in the decision section ignores the options that would flag up further assessment or referral to other agencies and just ticks the ‘no further action box’. There is no evidence these inconsistencies were picked up in any subsequent discussions with the ATM or in any of the meetings.
2) When Ms Horrox took over the case she was clear in her evidence that at the handover a residential assessment was no longer being pursued as the mother did not agree. However other contemporaneous documents, one just a few days before she took over from the ATM is reported to state ‘the team manager and area manager have agreed a care plan that allows the mother and baby to be placed in an appropriate residential unit for further assessment’ and a letter in May refers to the mother waiting to hear about a residential assessment. It is deeply concerning that there appeared to be such a deep level of miscommunication on such a fundamental issue by two of the key social work professionals managing the case.
3) The failure to pick up in supervision (i) there had been no referral to adult services or when there was the delay of six months; (ii) to consider getting advice about how to more effectively communicate with the father; (iii) what further steps could be taken to engage the parents with support services; (iv) filing a care plan seeking adoption when a key referral to the adult disability team was still outstanding (which is not referred to in the Care Plan dated 6 September 2013 or the parenting assessment dated 17 July 2013)
(3) Not keeping an open mind about placement
74. There is a thread of evidence which points towards the local authority making up their mind at a very early stage that X could not be restored to his parent’s care and that, in reality, the options were either adoption or an SGO with his current carers. Whilst Ms Horrox said she retained an open mind, from the parent’s perspective that may not have been readily apparent to them. There is no evidence of a structure as to how that position was reached and an analysis of the options, with the advantages and disadvantages being properly weighed up and considering what support could be available for the parents. From the parent’s perspective it may have seemed an unfair process.
(4) Content of the statements filed on behalf of the local authority
75. The social work statements were far too long and, in part, unfocussed and there was a lack of balance regarding their content. For example, it was extremely difficult to find the core relevant material that underpinned the threshold criteria. There were pages of generalisations which lacked any real evidential value. The lack of balance in the way some of the information in the statement was presented is illustrated by the reference in Ms Horrox’s statement referring to the police being called by the neighbours in early December as the parents were reported to be arguing. The statement records the mother being ‘dishevelled’ is not in the referral from the police, which is the only source of the information. Also, what the statement does not record, which is in the referral document sent by the police to the local authority, is the particular neighbours who alerted the police had been previously arrested for wasting police time for making such calls. That could have been an important context that should have been set out and addressed, not just left out.
76. Another matter that arose in the oral evidence was comments made by the mother in July 2013 regarding her concerns about the paternal grandmother. Whilst those comments were referred to in general terms in the written material the detail only came out under cross examination by Ms Stone on behalf of the Children’s Guardian. Ms Horrox’s instincts were correct that information should have been recorded and disclosed. She was understandably concerned about the management of when it was disclosed, but appeared to be awaiting authorisation from some unspecified person to disclose it. It is right to record that the Court has made no findings about the concerns raised by the mother and no party has suggested that those concerns affect the paternal grandmother’s ability to care for X in the future during periods of contact.
To be fair to the social worker, the Judge outlined that these were not faults that lay entirely with her, but systemic failings
81. The court is acutely aware hard choices have to be made about limited resources but the structural failures in this case, particularly at the early stages, to properly assess the parent’s ability to be able to care for X has caused enormous delay in decisions being made about X’s future care.
82. I should make it clear whilst Ms Horrox has been the person giving evidence and been at the front line, I am satisfied on the information I have seen that the faults appear to be primarily systemic faults within the structure of the local authority. It was Ms Horrox first case where proceedings had been issued. She accepted there were delays in the disability assessments, delays in completing the relevant documentation for care proceedings. Those and other delays should have been picked up by those with responsibility for supervising her much earlier.
The Local Authority did take on board those failings and presented the Judge, after the judgment was delivered, with a blueprint for how they proposed to remedy those failings in the future. That doesn’t help this family, who were badly let down.
Having reached a broad consensus that X should live with his foster carers and under Special Guardianship Orders, there was also agreement that the Court should review the case in six months time.
62. What is being sought by the parties is for the court to retain a welfare oversight for a short period of time to assist the parties, if required, to deal with issues concerning the welfare of X. In particular to provide a legal framework which kept all parties on equal terms and did not undermine the morale of the parents and made both the parents and the local authority accountable to the court for the maintenance of a proper working relationship.
That posed a problem – how to legally structure that review?
One can easily understand that simply adjourning the care proceedings was not a palatable one, with the LA being in the driving seat, given the raft of criticisms made of them.
The eventual solution settled upon was to give the Local Authority leave to withdraw their application for care proceedings, and for the Court to use its inherent jurisdiction (if one of the parties asked them to)
64. Having considered the position I have reached the clear conclusion that in the very unusual circumstances of this case, and particularly because of the history, the court should accede to the request by the local authority to withdraw the care proceedings and invite one of the parties to issue proceedings under the inherent jurisdiction with the other parties to the care proceedings being joined as parties.
65. I have reached this conclusion for the following reasons:
1) The agreement reached by the parties was on the basis that the local authority does not pursue its findings regarding the threshold criteria and seeks leave to withdraw the care proceedings. It would be inconsistent with the letter and the spirit of that agreement, if the court went on to make findings, albeit on the lower level necessary to found an interim supervision order. The risk with that course is that it may hinder the future good working relationship between the parties which is not in X’s best interests. Particularly as there is going to be a change of team.
2) I am satisfied that the withdrawal of the care proceedings is consistent with X’s welfare. In the light of the agreement reached between the parties it would be wrong to require a trial on the threshold issues in this case. The parents accept X will be cared long term by Mr and Mrs SG under an SGO and they accept the revised care plan put forward by the LA regarding their contact. There would be no demonstrable welfare purpose in such a contested hearing. On the contrary I consider such a trial would seriously risk the positive steps made by the parties in reaching agreement. Having said that I am certainly not prepared to say on a summary basis that threshold could not have been made out in this case. As I indicated in argument, Ms Wiley’s submission at the start of this hearing that the proceedings were unlawful was ambitious and was wisely not pursued. I did not hear all the evidence and whilst it looked like the issues concerning missed medical appointments and failure to provide breakfast on one occasion during the assessment did not stand up to forensic scrutiny there were other issues, such as the parents’ relationship and the emotional care of X that would, if necessary, have required detailed consideration by the court as to whether the threshold criteria was met.
3) X’s welfare requires the parties in this case to look forward. I consider that has the best chance of succeeding if the care proceedings are withdrawn at this stage, rather than lingering on in the way suggested which may hamper the parties on the ground being able to move forward with a proper working relationship, which is what X’s welfare demands.
4) I have been informed by the parties that there are no procedural or funding obstacles in the way of the same parties being re-constituted within different proceedings. This step will not cause delay.
I am not sure that I share the same degree of confidence about funding obstacles, but no doubt some assurances had been obtained from the Legal Aid Agency. Care proceedings receive no questions asked free legal advice for parents (or at least “non means, no merits” funding within tight fiscal limits) whereas representation within the inherent jurisdiction sounds to me like it will be entirely discretionary for the Legal Aid Agency.