England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
SITTING IN LEEDS

		4th May 2023

THE HON. MR JUSTICE FORDHAM
Note: This judgment was produced and approved by the Judge, after using voice-recognition software during an ex tempore judgment in a remote hearing.

MR JUSTICE FORDHAM:

1. In this case I am satisfied that the Claimant ("SWE") has discharged the onus of demonstrating the necessity, for the protection of the public including public confidence, of the 12 month extension to 14 May 2024 of an Interim Conditions of Practice Order ("iCOPO") imposed on 11 November 2021 for 18 months. I will grant the Claim for an extension in the terms sought. The extension is pursuant to Schedule 2 §14 of the Social Workers Regulations 2018. The guidance in GMC v Hiew [2007] EWCA Civ 369 at §§28, 31-33 applies.
2. The Defendant did not appear at, or make representations for, the November 2021 hearing; nor the four review hearings that have taken place in respect of the iCOPO: on 10 May 2022; 25 July 2022; 6 October 2022 and 22 March 2023. I am satisfied that the Claim documents, filed with this Court on 14 April 2023, have been served. They were sent to the Defendant on 17 April 2023 and, I am told, recorded signed-for as received on 18 April 2023. There is a Certificate of Service dated 27 April 2023. The Defendant sent a text on 25 April 2023 stating that he would not be attending this hearing because he was working; that he was happy to proceed with the interim order at this stage; but that he may attend in future. Attempts to clarify beyond doubt whether that means he is consenting to the 12 month extension have not succeeded. There were voicemails to the same number from which the text had been received. On 26 April 2023 and 3 May 2023. The email on 27 April 2023 sending the Skeleton Argument also raised the question of consent and the Consent Form and Consent Order which had previously been sent for signature and return if agreed. There has been nothing further.
3. I am satisfied that it is appropriate to proceed with this hearing in the Defendant's absence, that he has had an opportunity to make written representations and to attend this remote hearing to make oral representations. It is in the interests of justice to proceed today; not to adjourn; or to allow the iCOPO to expire on 15 May 2023. I am satisfied that it would not be right to treat the Defendant as consenting – though he may be consenting and on one view of the text is consenting – to the 12 month extension. I am satisfied that he could have clarified the position beyond any doubt, and his failure when asked to do so itself raises some doubt. I also proceed on the basis that there is no specific point raised by him in opposition to the extension sought.
4. I must satisfy myself that the extension, the nature of the interim order being extended, and the duration of the extension are justified as necessary. I have done so. The allegations which constitute the underlying concerns in this case were rightly characterised by the Review Panel at the hearing on 22 March 2023 as follows: they are regulatory concerns against the Defendant, arising during the time and he was employed by a local authority in a statutory role as registered manager of a children's care home; the regulatory concerns are serious; there are repeated allegations, occurring over two different periods of time; the allegations would, if proven, constitute conduct demonstrating a failure to ensure safeguarding procedures had been followed, failure to appropriately record incidents, and failure to take action leaving a child at significant risk of harm; if proven, the allegations would constitute conduct demonstrating a serious breach of several key tenets of the social work profession; if proven, the conduct stands to have placed service users at risk, to have seriously breached public trust, to have undermined public confidence in the social work profession, and to have been inconsistent with the standards of conduct and competence expected of a social worker in accordance with professional standards. I stress that these are allegations. It is not my function, nor am I in any position, to make findings or express a view on the merits, or whether the Defendant has a good answer. All of that is for the underlying process which is ongoing. I am considering risk, in the context of public protection and the public interest.
5. I have proceeded on the basis that there is prejudice to the Defendant from the ongoing iCOPO. Having said that, the Defendant has not produced evidence of the nature of that prejudice. His text communication indicates that he was currently working. Moreover, the iCOPO is a less intrusive measure than an interim suspension order and is designed and intended to impose relevant conditions which would, in principle, enable the Defendant to continue to work as a social worker. The reasons why the underlying proceedings have not been completed have been explained in the evidence placed before me and served on the Defendant. That includes a Witness Statement and a Chronology as well as contemporaneous documents. I proceed on the basis that there was, on the face of it, some delay in requesting documents before 23 August 2022. But after that there was a sequence of chasing communications and a delay in responding on the part of the relevant local authority. Materials were provided in January 2023. I am told by SWE that the Case Investigation Report is expected to be served later this month (the latest update is 9 May 2023) and the Defendant will have a statutory 28 day period to respond (6 June 2023). If at any stage any case is not proceeded with then any interim order will fall away. There are 10 weeks envisaged and allowed for Case Examiners review and any referral to a Final Hearing (end of August 2023). If referred for a Final Hearing, the earliest envisaged Final Hearing is likely to be early 2024. I accept, on the evidence, that SWE is taking appropriate steps to progress this and other cases, in the context of some backlog which I am told has arisen, in part, by virtue of the pandemic. Any prejudice to the Defendant is in my judgment decisively outweighed by the public interest imperatives in favour of the iCOPO continuing. Finally, 12 months is – in my judgment – necessary and proportionate in light of the steps which would be needed to take this case through to completion. I will grant the Order sought. There is no application for costs and will be no Order as to costs.

4.5.23