England and Wales Family Court Decisions (other Judges)

JUDGMENT

See also:
[2015] EWFC B186
[2014] EWFC B227

1. The context of this application for an independent social worker is that it is taking place in the course of care proceedings relating to five children, they are A, B, C, D and E. This application is occurring on day five of what should be a six day final hearing. The application for an independent social worker has been applied for formally by the Mother and supported by the Father who has provided me with a draft application which she proposes to issue. The Local Authority asks me to make final care orders and approve final care plans for A and B to remain in long-term foster care. For C, D and E the Local Authority's application is for final care orders and placement orders with final care plans for all three to be adopted. As at least the younger three's care plans involve adoption, the court's eyes are particularly drawn to the evidence in support of the application and consideration, as for B and A but particularly for the younger three, must be rigorous and I could only approve an adoption care plan if 'nothing else will do' in terms of placement.

2. The parties are Hampshire County Council, represented by their counsel throughout this final hearing Mrs Henstock-Turner who has done her best under exceptional and exceptionally difficult circumstances. Her instructing solicitor is Melanie Kingsley, she is not in court and has not been during this hearing. The Mother is M, represented by counsel Miss Street. The Father is F, represented by counsel Miss Khan. A and B are separately represented as they do not agree with the Children's Guardian, A by Miss Lambert her solicitor and B by Mr Belcher his solicitor. C, D and E are represented by their Guardian, Miss Edney, and counsel Ms Gough. I say at the outset I am grateful to all counsel for their assistance given during these last five traumatic days. Before turning to the application itself, as part of my decision making process, I took the view that it was important that I revisit the procedural steps that had taken place in this case that brought me to the conclusion that the final hearing could not continue without a review of the historical material and also the current circumstances of this family that they find themselves in, including the parents' ability to parent and whether, if further help is needed, they are able to accept that help and make improvements.

3. I turn therefore to a brief setting out of the procedural steps that have brought us to today. This application was issued on 15 ^th July 2013. The application states that the Local Authority's case is that Hampshire County Council needed to step in and bring care proceedings for 'years of sustained neglect' which included non-attendance at educational establishments. A chronology was produced by Sarah Walker-Smart from her perusal of ICS, which are the computerised notes on the Local Authority system. Those notes, according to her, demonstrated a significant involvement by the Local Authority going on for many years. The Local Authority's case was that despite there being a number of different providers of support helping this family, including different social workers, the Local Authority's view was that there were varying degrees of success. The parents, to their credit, have accepted some of the criticisms including for education and those acceptances, it is agreed, are sufficient to satisfy the threshold criteria. This case is therefore primarily about, although there are some significant threshold issues to be determined, the Local Authority's assessment of the parents, their capabilities and abilities to change and its characterisation of the history which they say demonstrates an overall pattern of some co-operation from time to time but no with sustained success.

4. The matter came to court, following the allocation of the case on 20 or 21 ^st June 2013 to Sarah Walker-Smart, who took over from Ms X. Ms Walker-Smart's assessment of the history and what she found when she met the family drove her to effectively have the children removed from the parents' care and to get the Local Authority's legal department to issue care proceedings. Two things are noteworthy; Ms Walker-Smart accepted in evidence that she had taken over without any handover from the previous social worker, Ms X; further she told me that Ms X's work is being investigated and I was subsequently told that she was the subject of an internal investigation. I was not given any detail of what that investigation was and, given the delicate stage that we had reached in these proceedings, I thought it was not necessary for me to know - it being hoped by me that the evidence of Ms Walker-Smart would enable me to continue with the case. Ms Walker-Smart's view of the situation with the parents it seems to me is at least arguably and probably in reality very different from the view taken by the previous social worker although I don't know yet because 200 pages of social work recordings have not yet been properly analysed. Ms Walker-Smart was so concerned about what she found in the notes and on the ground, that she was instrumental in starting care proceeding and to the children being removed. She filed an initial statement and in that statement she referred to a core assessment by the previous social worker, I will deal in more detail with this document later. She told me that she had, in reaching her decision, reviewed the case records on the computer and it was this review and the conclusions she reached having done so, coupled with her own observations of the family environment that brought the Local Authority's intervention to the level that led to the removal of the children. It is her actions and her review of the previous records that was and may be in the future a significant plank in the parents' case for the return of the children. Their case being that the assessment of Ms Walker-Smart was flawed and inadequate and this coupled with what Ms Walker-Smart accepted was a poor relationship with the parents, meant that the assessments carried out were neither fair nor accurate.

5. On 15 ^th July 2013 the matter was allocated to the Portsmouth Family Proceedings Court, where it was case managed by a Lay Bench and Justice's clerk and where it remained until 13 ^th December 2013 when the matter was listed for IRH. At that IRH, it appears the Justices took the view that the case should be transferred to the County Court. The reasons given were that the matter was fully contested and would take more than 3 days. It was also flagged up that A and B needed separate representation and this was an additional reason that it was better to be dealt with by the County Court rather than a Lay Bench. I make, at this stage at least, no comment as to why it took 6 months for a Lay Bench to identify that this was a case best suited to the County Court, particularly as in October last year there had been a significant issue as to ongoing contact which provoked an application for contact to be refused, following what is said to be a nasty altercation between the parents and foster carers. That factual issue is still to be determined by me but I have viewed, last week, a short clip on DVD of the CCTV footage. As the case is still part-heard I say no more about it save that where there is such a significant issue it seems surprising that it was not even considered for transfer earlier. Due to the close proximity of the Christmas break, the earliest date it could be considered was 6 ^th January 2014.

6. On 6 ^th January His Honour Judge Levey, the Designated Family Judge, held a First Directions upon transfer hearing. He confirmed that the 26 week timescale would not be met given the complex nature of this case. He made various directions, in particular he transferred it to me for case management, setting up an IRH on 3 ^rd March 2014 and exceptionally listed a final hearing to take place in April. I say exceptionally as in this court we do not fix final hearings in advance of the IRH for obvious reasons. In addition to those hearing dates he also made directions for disclosure of foster carer notes and contact notes. The continuing request for those notes has been a continuing theme in the County Court.

7. On 7 ^th February the matter came before me on an urgent basis. The case was re-timetabled and the final hearing slightly extended so that it could start on the last day of March through to today - the advantage being a continuity of dates which was not available on the previous timetable. Surprisingly, in my judgment, the final witness requirements had not, by 7 ^th February 2014, been agreed. I say surprisingly as it had been known since the IRH in December 2013 that a final hearing was going to be required, the matter was going to be hotly contested and therefore by the time it came to me a witness template, as least in draft, should have been available. I made a direction that a timetable should be provided by 13 ^th February. I was also told on 7 ^th February that an adoption worker, DD, would not be available for the final hearing dates, so I gave permission for a colleague to attend court in her place to give evidence, this was not controversial. There was also surprisingly no agreed threshold criteria document filed and it should have been as threshold in broad terms had been accepted at an earlier stage.

8. On 3 ^rd March I held an IRH. I agreed that I would see A and B on a date other than the final hearing as they had expressed desires to see me. I made specific and careful directions and I had the pleasure of meeting them in the presence of their solicitors. The notes of those meetings were disclosed and are in the bundle. On 3 ^rd March I also indicated that sibling contact should take place, it not having taken place for a considerable period for what seemed to me to be no good reason. On 7 March 2014 I made an order for sibling contact to take place as there seemed to be no concrete proposals in this regard from the LA. A sibling contact did take place before the final hearing although despite my having ordered that it be supervised by the Local Authority, it was left to the foster carers to organise. It took place in what must not have been ideal circumstances, namely a service station on the M27. On the 3 ^rd March I made a direction that the agreed threshold document be filed by 13 ^th March. It wasn't, it had not been filed at start of this hearing. I also ordered the LA to undertake a sibling assessment. However, due to logistical difficulties on 7 March 2014 I discharged and made orders for an addendum sibling assessment to be carried out in two parts. By MM in respect of A and B and by SS for C, D and E. I also made another direction for foster carer notes and contact notes to be disclosed. I also made directions for ICS notes for the period January 2012 to July 2013 to be disclosed by 6 ^th March. It is not entirely clear when they were finally disclosed, but not by 6 ^th March. There was at one stage a suggestion that the parents would make an application for FC2, the younger children's foster carers, to give evidence but fortunately this was resolved and it was conceded that they did not need to give evidence.

9. On 7 ^th March there was another directions hearing, due to my concern about the case. The addendum sibling assessments by SS and MM were to be filed by 17 ^th March. I made a direction for inter-sibling contact to take place supervised by the Local Authority and as I said a moment ago it took place but not supervised by the Local Authority, a signal failure in my judgment. I made a further direction for the ICS notes to be disclosed and extended time for it to 13 ^th March. I was told at that hearing that the then current allocated social worker was going to be on leave until 30 ^th March. I expressed concern that in such an important case as this it seemed inappropriate or at least unhelpful that the social worker was not going to be in place for at least part of time prior to the final hearing. However, the social worker has of course a team manager and, in the absence of the social worker, one could expect the team manager to take over the day to day management and assist the court and others.

10. There was then a gap until Monday of last week when the final hearing started on 31 ^st March. On day one there was an initial problem as the Mother's counsel was unable to start the case until 3pm due to personal difficulties. I then sat from 3pm to 6pm to catch up on time lost or some of it. I did have the opportunity, which I took, to view the short clip of CCTV footage of the alleged altercation at the contact centre. As is all too inevitable in these cases there were problems with the court bundle, it was not up to date and was un-paginated in a number of respects, the threshold criteria although conceded had not been put into an agreed document, despite my having ordered it on 3 ^rd March, fortunately Mrs Henstock-Turner was able, I think, to rectify that.

11. Miss Walker-Smart gave evidence in the mid-afternoon. She told me that she had been the children's social worker between June 2013 and 10 ^th January 2014. She had last seen A and B on about 18 ^th December 2013 and C, D and E in February 2014. She had filed a number of statements, was the author of an undated core assessment and co-author of and prepared the final care plans for all five children. The other co-authors being her team manager, Kim Goode, and Lisa Humphries, the then district manager. In relation to the current social worker, she is Casey Willcox, she is not in court, I am told she is still on annual leave. I was told at some point that the annual leave had to be extended due to personal matters with illness in her family. I am still a bit unclear as to when this arose. The important issue is that I did not have in court any social worker who was currently then representing the children, with Ms Walker-Smart's involvement ending in December 2013 and in February 2014, she changed teams. One might have thought that with Ms Wilcox unavailable the team manager would have attended to assist Mrs Henstock-Turner with the presentation of the Local Authority's case. She did not. That manager is a Laura Mallinson. I was told that she was not available because she was either preparing to go on or was on annual leave and in any event was in the process of changing teams.

12. An issue that quickly arose in Ms Walker-Smart's evidence was whether there were or were not what were described as core assessments other than those that Ms Walker-Smart had prepared. This is an important issue because core assessments or assessments prepared in advance of formal court documents contain a wealth of important information on the children and family which are vital to any consideration as to what is in the children's best interests and particularly whether they can stay with their parents or whether their welfare demands separation. Ms Walker-Smart had, in her initial statement of evidence, referred the court to a core assessment carried out by Ms X. The parents' solicitors, with their usual tenacity, had been chasing the disclosure of this assessment to no avail until in August 2013 when it was said by the solicitor for the Local Authority, Melanie Kingsley, that no such assessment existed, it had been started but not completed. However in cross-examination Ms Walker-Smart swiftly conceded that her referral to such an assessment was a mistake based on an assumption by the then team manager which she accepted and adopted. This was not a particularly good start for the Local Authority as it looked as though Ms Walker-Smart and her team had been less than thorough in their perusal of the documents before swearing a statement and coming into court. The matter got worse for the Local Authority I am afraid.

13. I was referred to a number of specific documents, in particular at K75, which seemed to fly in the face of what I had been told by Ms Walker-Smart a few minutes earlier. The matter was compounded as I then found reference to a 'review core assessment' by which stage it was becoming clear to all parties and me that the Local Authority's evidence as to the existence of the core assessment appeared to be flawed in a number of respects. There were of course other issues in respect of Ms Walker-Smart's evidence. She was asked about the conflict between the parents and the foster carers, in particular at the contact session on 3 ^rd October. The DVD is only video, there is no sound so one cannot hear what any party said, but it certainly appeared and she seemed to accept, that there was a potential arguable discrepancy between what she had been told by the foster carers and what the parents said, which on one interpretation of the DVD might support the parents at least to the extent that it could be argued that the foster carers had exaggerated.

14. There was an issue that came out of her evidence that concerned me as to whether the Local Authority had really been working this case properly and this related to the fact that E had not been to contact with his parents since at least before Christmas. There appeared to be a stark conflict between what the foster carer said and the evidence of the contact workers who had tried to gain access to E in order to take him to contact. The foster carer was saying that E was reluctant and did not want to go, and the contact workers were giving the impression that he was not being made available for contact and the foster carer was being difficult. I do not want to say anything further or reach a conclusion, I am still to hear evidence and need to make findings on the DVD issue. Suffice to say by the time we got to this stage I was getting increasingly concerned as to the viability of this final hearing, especially as the parents had been clamouring for the disclosure of ICS records and contact notes for a considerable period of time.

15. I make clear that the abandonment of this final hearing is not the responsibility of the parents, Guardian or the lawyers for the parents or Guardian. So far as I can see Mrs Henstock-Turner has done her utmost to make this hearing viable and assist the court since day one. Ms Walker-Smart, and I this mean genuinely, kindly volunteered, whilst still on oath, to go back to the office and go to the ICS notes, having been given a list of issues, to go through those case notes to identify entries that could be of relevance to any party's case. She was given quite a substantial list. Although I may seem to be criticising Ms Walker-Smart by my earlier comments, that is not my intention. I am just setting out where we had got to in her evidence. I would want at this stage to recognise for instance in relation to the issue of E and his contact that, in default of E's own social worker getting involved and doing anything about the situation, on finding out that E was not going to contact Ms Walker-Smart took it upon herself (although not her job) to try and resolve that issue and I believe with some success.

16. On day 2 of the hearing, 1 ^st April, the Local Authority came to court with Lisa Humphries, the district service manager. Mrs Henstock-Turner was still not attended by her instructing solicitor, the team manager nor, perhaps unsurprisingly by the social worker. Ms Mallinson did come to court later in the day. I was told by Mrs Henstock-Turner that the Local Authority wished to change the care plan for A and B, a change instituted by itself, and the plan was now to strive to keep B and A together and to strive to keep them with FC1 as long as it was in the children's best interests to do so. Ms Walker-Smart came part way through the day with some 200 pages of closely typed case recordings including a significant number of assessments that were contained in the ICS running records. It seemed to me, and I may be mistaken when I look at them in detail, to represent at least the bare bones of what would form the basis of core assessments.

17. During the day there were various discussions in and out of court. In court Mr Belcher advised me of a text message from FC1 and Miss Lambert, at my request, telephoned FC1 so that I could try and understand the process of getting FC1 approved as long-term carers. I make it clear that Ms Humphries was in court whilst these matters were being discussed and was fully aware of those issues and no objections were raised by her through her counsel to suggest that Miss Lambert speaking to or Mr Belcher taking a text from the foster carer, whilst this was an unusual way of proceeding, was in any way improper. Indeed no point should have been made given the practical difficulties that we were facing in getting information from the Local Authority in an attempt to keep the case viable. At 2:30pm on day 2 the National Fostering Agency confirmed, in a telephone call, that they would be, upon the Local Authority inviting them to, able to assess FC1 as long-term foster carers.

18. On day 3 the Local Authority's counsel was again without her instructing solicitor and no social worker for the children - Ms Walker-Smart was no longer the children's social worker. Mrs Henstock-Turner thought, at one stage, that she might be in professional difficulties and sought to take advice from her professional body and other experienced counsel. I am pleased to say that the issue was resolved but not without significant loss of time. At 15:34 I was told that the case had been transferred from the current team to a different team, although Ms Mallinson, team manager would still be the team manager for the new social worker who was to be appointed. During the course of the exchange between Mrs Henstock-Turner and myself, and having heard submissions and comments from the other advocates, there was a stage when it appeared that the Local Authority were not being quite as open and straight forward as I had thought. At one stage it appeared that the Local Authority might be trying to go back on and change the amended care plan for A and B or at least leave sufficient room for manoeuvre so they could change the plan after further assessment and therefore move the children away from FC1. I am happy to say that although much time was wasted on that issue it was decided by me that the Local Authority had not sought to give that impression nor to mislead the court. This was an important issue to establish as A and B had been told the night before of the change to the care plan and this being an important issue for both as they fervently wish to stay together with the FC1 if they cannot return to their parents' care. Towards the end of the day Mr Belcher, and I make not criticism of him for it, then raised an additional issue, which in retrospect it would have helped to know about earlier in the day, but due to the other issues during the day I am not surprised it did not come up earlier, but this meant that in fact we had to have another day of this hearing as I will set out.
19. At the end of day 3 it was clear to me that the final hearing was no longer viable and would need to be adjourned so all parties could have a re-evaluation in light of the vast disclosure of documents that had taken place on day 2. What Mr Belcher told me was of the utmost concern, he told me that he had been seeing his client the night before when the foster carer had received a telephone call from her manager from the NFA. The short version of that exchange appeared to be that FC1 was being accused of behaving unprofessionally as a foster carer and that she had gained the impression that, by her actions in speaking to the solicitors for the children, she had in some way placed the placement of the children with them in jeopardy. This was such a serious matter that, despite my intention not to sit on day 4, I was clearly of the view that I had to adjourn overnight to gain correct factual information and to correct any misapprehensions of the situation. As a result of this I made an order for Lisa Humphries to file and serve a statement explaining, from her perspective, the conversation and also for her and Ms York of the NFA to attend before me the next day. I also made provision for Ms York to disclose any emails and attendance notes.

20. On day 4 of the hearing I had before me a statement of evidence from Lisa Humphries, attendance notes from Ms York and I also had a letter from the daughter of FC1 who is a foster carer for a different local authority and an adult services social worker. In that letter she sets out, not only her mother's distress but in particular what I can only describe as her disgust at in her opinion being dragged into discussions and tricked into giving information to barristers. What had happened was Miss Lambert had attempted, at my request, to assist me in relation to the approval process with regards to long-term foster carers as the Local Authority was not able to help. Miss Lambert had gone directly to FC1, with my agreement. FC1 had been driving and passed the phone to her daughter. The daughter is an experienced foster carer and has some understanding of these things. However what the daughter had understood was that the information she had provided may get her into trouble both with the authority for whom she fosters and with her employers.

21. I took the concerns of FC1 and her daughter very seriously as it struck at the root of the faith that members of the public have in the court process and professionals, both legal and social work. What then happened was that during the course of the day, Ms Humphries and Ms York remained at court until I was satisfied that all matters had been sorted out and an Agreed Schedule of Clarifications had been written out and approved and signed up to by all parties. Much of the day of 3 ^rd April was taking up by the parties attempting to agree that document themselves but this was not possible and at 3pm I reconvened the court sitting. It then took a further 2 hours to produce a perfected document. It was then that, upon my insistence, Ms Humphries went into the witness box and was made to confirm that on behalf of the Local Authority she accepted that document and formally on oath confirmed that the change of plan was indeed the Local Authority's plan for B and A if they could not return to the parents' care.

22. The point of the document, the Schedule I refer to, is that factual matters which had arisen both in the statement of evidence of Ms Humphries and the attendance notes of NFA as well as the letter could be addressed in total, so that the NFA, FC1, Ms York and the daughter could see that there was no criticism whatsoever to be levelled at the involvement of FC1 or her daughter in the proceedings. It is quite a long document that took a long time to draft and it runs to 14 points. It is unfortunate and to say the least disappointing that we got to this stage and had to draft it, containing as it does such simple and trite points as restating that 'there is no objection in principle to a Guardian discussing the possibility of private law orders with foster carers in appropriate cases'. It is extraordinary that such a simple and obvious point of principle has to be restated at this stage in proceedings for the avoidance of doubt. There are a number of other issues but I don't think I will waste my time going through it. If this case goes any further I make it clear that I formally adopt that Schedule into this judgment and I invite anyone considering this case to have regard to that document when considering my judgment. I am happy to say that it was possible to email FC1 the document the same evening and nothing further has been heard from her or her daughter so I hope that the purpose of the document has been achieved and the misunderstanding resolved.

23. I was also told on day 4 that the case has been reallocated to Ms Shirley Gibson, social worker, who is in court, and Ms Grimshaw the new team manger who spent a significant period of the later part of last week endeavouring to get to grips with this case. My thanks to both.

24. On the 3 ^rd day the Mother, supported by the Father, indicated her intention to apply for an independent social worker assessment and the letter of instruction would be inviting the independent social worker to undertake a thorough re-evaluation and carry out a full independent social work parenting assessment. At that hearing it was indicated that Ms Hansford had made enquiries and identified and approached Teri Rogers, an independent social worker known to this court and known to many of the lawyers in this case and to Laura Mallinson. Her timescales seemed reasonable given the size of the work to be done, namely 8 weeks; as to costs, that was to be looked at today. At the end day 4 I had no choice but to adjourn to today which allowed the Local Authority to put in place its new team and allowed Ms Grimshaw to prepare herself and also to comment and if necessary, to resist the application.

25. Today I have received confirmation that the Schedule of Clarifications was sent to the FC1's and I have received skeleton arguments from all parties. I have two documents from Miss Khan: one skeleton and one headed Submissions. I have read those in preparation for this judgment. In addition the Mother had a statement prepared for her, amended and signed at court, primarily in support of the application which I have read. The Father has provided a draft application and supports the Mother.

26. Overall the parties' positions are that the Mother and Father together seek my permission for the instruction of an ISW. They suggest Teri Rogers and say that such instruction is necessary because of the significant failures of the Local Authority; firstly in relation to disclosure, and secondly they submit that the analysis of the information carried out by Ms Walker-Smart was flawed as it did not properly take into account the social work history. In addition they say an independent social worker is required because it would not simply be enough for the Local Authority to rely on the new social work team. Without any criticism of that team, they say for justice not only to be done but to be seen to be done, to have an objectively fair hearing, given the failures of the Local Authority, it is necessary for that work of re-assessment to be carried out by an independent social worker who has had no dealings with the case previously and no dealings with the Local Authority other than as an independent social worker.

27. B and A have not been specifically asked, however their lawyers on their behalf see the merits and, so far as they are able, they support the application. They set out in their skeleton arguments why and broadly mirror the arguments of the parents.

28. The Guardian has had a skeleton argument filed and she is in no doubt in giving her support for the parents' application. She recognises the Local Authority's failure to disclose vital information until day 3 of the hearing at the least gives rise to the appearance that the Local Authority had been deliberately trying to withhold information or perhaps more charitably had been so inept as to not take it into account. She does raise one concern that is that Ms Hansford, in her informal communication in finding out Teri Rogers' availability, may have given a steer to Ms Rogers that there would be an attempt at rehabilitation. I am quite sure that this was not a deliberate attempt to influence the expert and, to the extent that it might have had that effect I am quite certain that, knowing Ms Hansford professionally, this would have been inadvertent. She was trying to do her best to assist the court by identifying an expert who could get involved.

29. The Local Authority's position is that it has completed the process of putting in place a new team. As of last week there was a new social worker, although the team manager had remained. On filing her skeleton argument Mrs Henstock-Turner said there was a change of team manager but Lisa Humphries remained in place. Unsurprisingly the parents, B and A took issue with her involvement which I have to look at a bit more carefully in a moment. The Local Authority, rightly in my judgment, sought to rectify this by putting in place a new district service manager, Richard Hadley. So today, the children have a new social worker, who has a new team manager and they have a new district service manager. I am told, and I accept, that none of these three people has had contact with this case previously. The Local Authority therefore submits this: first of all it concedes a thorough re-evaluation is required and, I checked with Mrs Henstock-Turner, there was no ambivalence in their mind. I have been told that this will involve the new team reading the ICS notes, meeting the family and making their own assessment, looking at contact on more than one occasion and then reaching its own conclusions independent of the conclusions reached by the previous team. The time frames are broadly similar to the ISW. The Local Authority's case can thus be summarised as follows: as none of the original team are involved the Local Authority can and should be allowed to carry out the re-evaluation that is required and, having made that concession, an independent social worker with the cost implications is not required.

30. I turn next, before my analysis and decision, to the consideration of the law. I am indebted to Mrs Henstock-Turner for her succinct and excellent summary of the law for Part 25 applications and I hope she will forgive me in plagiarising and accepting paragraphs 3 to 9 of her skeleton argument dated 6 April 2014. I can and should only order expert evidence when I consider it necessary to assist me to resolve the proceedings justly. In making this decision there are a number of factors I must take into account listed at (a) to (h) before considering granting the application. 'Necessary' has its ordinary English meaning and to be honest whilst other attempts have been made to clarify it, it has that meaning, exactly that, connotations of the imperative, more than simply reasonable and desirable. To be grafted onto and taken into consideration is the question of the overriding objective which applies to all applications. The matters that jump out at me are 'justly' and 'fairly' and it seems to me that it is those two issues that are most important and that I should have most in mind in this application. I say so as the parents have been complaining about the Local Authority social work involvement since the inception of these proceedings. They have rightly or wrongly formed the view that the Local Authority took against them since Ms Walker-Smart became involved and have been wrongly and unlawfully deprived of their children, or rather, the children of the care of their parents. So much of this case is perception, it is perception that has driven my ultimate decision.

31. Applying law to the facts my analysis and decision is as follows. I have concluded that a complete re-evaluation is necessary. The Local Authority has rightly conceded this. The Guardian also supports this analysis. I find as follows. It is necessary for such re-evaluation because of the late disclosure of documentation by the Local Authority, in particular the 200 pages I referred to above including notes which could well be described as preparation for core assessments and containing as it does a wealth of important information about the family which at least at this stage does not appear to have been evaluated or taken into account in assessing them. I also note the immense difficulties there have been in obtaining co-operation for the obtaining of foster carer notes, contact notes and other disclosure, even in my short involvement. I have already set out above the details of the directions made by me and His Honour Judge Levey for disclosure. It is also my judgment that the re-evaluation is necessary due to Ms Walker-Smart's evidence that her initial statement contained false information about the existence of the core assessment and her evidence that core assessments did not exist when the evidence shows that the basis of them at least did exist. When looked at objectively, the behaviour of Local Authority demonstrates a failure to consistently, or at all, to disclose information which was damaging to their case and supportive of the parents'. I make clear that I suspect this is not a deliberate attempt, and the evidence to prove otherwise would need to be cogent, but what has in fact occurred is that the failure to disclose that information has given rise in the parents', the children's and the Guardian's minds the feeling that the Local Authority has not evaluated properly and so re-evaluation is necessary. The questions that have exercised my mind are twofold, whether it can be done by the new team and if not and an independent social worker is needed, should it be Teri Rogers or Helen Randall.

32. In looking at the question of whether it should be a new team or independent social worker I have heard and accept that as a new team they come without pre-conceived ideas and I am assured that they will have a fresh look at it and will carry out a new assessment. The Local Authority submits that they have the capacity and capability and the necessary objectivity to carry out the assessment within reasonable timescales, and certainly the same timescales as the ISW. Against this is that they are employed by the same Local Authority which, in this case gives rise in these parents to a level of mistrust, not aimed at a particular social worker or team, but at the Local Authority in general. I note that the social worker to carry out the work, although experienced, does not carry the same weight of experience as the independent social workers. I am mindful that there is a cost implication of an independent social worker. This needs to be balanced against an in-house assessment which would tie up an experienced social worker almost exclusively on this case for 8 weeks. The advantage of an independent social worker is there can be no doubt that they are truly independent. There are two names, Teri Rogers and Helen Randall, accepted by all parties, including the Local Authority, as being very very experienced social workers. They have both been Guardians in their time. Their timescales are similar to an in-house assessment. The Local Authority argument regarding an in-house assessment would under normal circumstances carry great weight and my normal procedure is as per the guidance under 25.5(1)(a) to ask the Local Authority to provide that further work or re-assessment. However, this is not a normal case. It has a long history of mistrust at a level I have not come across for a long period of time. The children have been in proceedings since July last year. There is a significant level of criticism of the social worker and social work involvement from June 2013 when the children were removed. The cross-examination I have heard so far lends some credibility to those criticisms and I put it no higher than that. I therefore take the view that this is not a normal case where a change of team would objectively allay concerns about independence. That is a general comment about where we are in the case and even that could have been overcome by use of a new team and in itself would not prevent Local Authority undertaking work were it not for the conversation of Ms Humphries with Ms York.

33. Whatever Ms Humphries did say and however Ms York heard it, the impact of this conversation on FC1 and her daughter which took me a full day to unravel and rectify, brought the level of distrust to a new height which in my judgment cannot be set aside or allayed by the use of the new team. The series of events of day 3 and 4 I found extremely worrying, it worried the parents and the Guardian, let alone the solicitors for B and A. It seems to me that that conversation and the time taken to put matters right, namely a whole day, just leaves such a level of distrust for not only the parents but objectively, that I cannot take the risk of any more delay or anymore concern regarding the objective nature of assessments in this case. If I had to identify one matter that tipped the balance in favour of an independent social worker, then it is what happened last week on days 3 and 4. By instructing an independent social worker I am doing the best I can in guaranteeing as I hope that all parties will see, that the further work with the parents is objective and thorough. The thought of wasting time at a hearing in August to see if the assessment has been independent is something that I should try to avoid as it will cause delay.

34. As to the identity of who it shall be, I have found this difficult. I make a finding that both have the requisite expertise and experience. Ms Rogers is described to me as having a particular personality and is seen to be down to earth such that she would rapidly establish a working relationship with the parents. The implication being that Ms Randall will not. I have tested this out as best I could as it appeared to me to be based on anecdotal evidence. The conclusion I have reached is that no one has been able to give me concrete evidence or a reason that either one or the other would best be able to form a professional working relationship with this family. As I say the timescales, experience and costs are broadly similar. On balance, and it is on balance, I am willing to approve Helen Randall as the social worker to undertake the independent social work assessment. My reasons are as follows. I place on one side the unsubstantiated concern that she would be less able than Ms Rogers to form a working relationship with the parents. I am satisfied as a professional that she will be able to bring the parents on board as indeed she will need to with this new social work team. In terms of why I have chosen her, it seems to me to be down to the worry that the Local Authority have about Ms Hansford's email, perhaps rather poorly expressed, which on the Local Authority's interpretation seems to give a steer to Ms Rogers as to the way forward. I do not think Ms Hansford was trying to do this but out of an abundance of caution, where I have a Local Authority saying that they are genuinely concerned and I have to take this into account, it tips the balance in favour of Ms Randall rather than Ms Rogers. This application and the conclusions that I have reached amount to a very delicate situation where nuance and perception is all. By giving permission for Ms Randall to be instructed I hope that all will see her as objective, thorough and reliable. As such I give permission for her to do the report.

35. I make it clear I personally am not saying that Ms Rogers would have failed to carry out a professional piece of work. I am simply saying that due to the nature of the initial approach it would be better to approve Ms Randall who was neutrally approached. I have seen the email approach to Ms Randall. Less the parents be concerned that because she has been suggested by the Local Authority and therefore comes with bias towards them, I can assure them that she will not and has not. I have had both Ms Randall and Ms Rogers before me previously and I have not had their professionalism attacked nor did I have a negative view of them. Ms Randall will need to speak to the parents and will need to form a swift professional relationship with the family. She will speak at length to the parents. It is their opportunity to work with her in preparation of her re-evaluation.

36. [HHJ now addresses the parents] Whilst I am on the topic of working, there is now a new social work team and what ever the result of this hearing, supposing that the children remain with you or in situations you are seeing them it will be vital that you can build up working relationships with professionals. This is your opportunity to demonstrate to me that you can do so. If the new team encounter difficulties that they can document and substantiate on oath then I am afraid that that will count very much against you at a final hearing. On the other side if you demonstrate an ability to work with them that is a positive factor which I will take into account. I see you are both nodding and take that as agreement.

37. In terms of the costs, it is clear to me that this re-evaluation has been wholly brought about by the Local Authority's failure to bring about disclosure of documents on time and at least to evaluate the information properly. In addition there are other issues of the conduct of this case which have given me great cause for concern. I do not want to reach at this stage final conclusions regarding respective responsibility or blame, however I am clear in my own mind that we would not be in a position on day 5, and adjourning to a date in August with a complete re-evaluation, if the Local Authority had done its job properly by social work and disclosure. I will not reach final conclusions at this stage and I may not have to depending on outcome but as far as the responsibility of the new work it is clear that it is the Local Authority's responsibility and they should pay. I have read submissions from Mrs Henstock-Turner, read submissions from the other publicly funded parties and I accept that the Legal Aid Agency should not have to bear any of the cost. It is work that should have been done by the LA and because it was not done properly the case has had to be adjourned and the work re-done. I hope the new team carries out assessments, it is important that it does so. Having done so it might not agree with Ms Randall's assessment. That is a position that any party is entitled to reach provided that they can evidence that objection and that it is a reasonable one. I would hope that an agreed position can be reached at the end of the work. This has been a long judgment for a short point but it is important that all see that I have been very conscious of the delicate issue that this case has produced and I am acutely conscious that I have required the Local Authority to pay for an expensive assessment by an ISW. In my judgment the conclusion that an independent social worker is necessary is inescapable.

Note prepared by Siân Gough

Counsel for the Guardian

15 April 2014

Amended and agreed by all advocates prior to submission to the learned judge.

Amended and approved by HHJ Mark V Horton

28 May 2014