England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		30/01/2015

Mr Justice Keehan:

Introduction

1. On 30 January 2013 DS, then aged 15 days old, was placed with foster carers by the local authority, Northamptonshire County Council. His mother, AS, agreed to him being accommodated pursuant to s 20 of the Children Act 1989.
2. The local authority concluded that DS was at a real risk of physical harm from the mother's then partner OV. Further, there were concerns about (i) the mother's ability to care for the baby safely and appropriately; and (ii) her readiness to engage with professionals.
3. It was not until 23 May 2013 that the local authority made the decision to initiate care proceedings. Quite astonishingly it was not until 5 November – some five and a half months later and nine months after DS had been taken into care – that the local authority issued care proceedings. I have received no satisfactory explanation for these extraordinary delays.
4. Thereafter the case was further delayed by the egregious failures of the local authority:

i) to undertake assessments of the mother, of the maternal grandparents, who reside in Latvia, and of the paternal grandparents, who reside in Spain;

ii) to undertake any proper or consistent care planning for DS; and

iii) to comply timeously or at all with court orders for the filing and service of assessments, reports and statements.

5. On 7 October 2014 I indicated, at what was intended to be the final hearing, that I would give this judgment in public setting out the lamentable conduct of this litigation by the local authority.

Background

6. The maternal and paternal families are Latvian. The mother and father came to this country in 2012. Initially DS's brother, T, lived with them but he was subsequently returned to Latvia to live with the maternal grandparents where he has remained to date.
7. The paternal grandmother and her partner live in Spain.
8. In late 2012 a referral was made to the local authority by the mother's general practitioner because of her lack of antenatal care and because she claimed to be homeless and was sleeping on the street. In early 2013, just before the birth of DS, the mother told a midwife that she had a new partner, OVs. He was a heroin addict.
9. After DS's birth on 15 January there were very substantial concerns about the mother and her care of her young baby. She avoided seeing the midwife, she frequently moved addresses in the first two weeks of DS's life and the home conditions were exceedingly poor. On 27 January the mother told social workers that OV was being aggressive and threatening to her and that he left used needles around the house.
10. On 30 January the local authority concluded that DS was at risk of harm in the care of his mother and secured her agreement to him being placed with foster carers. I question how effective that consent was when it was sought without the mother having the benefit of an interpreter.
11. The case proceeded in the Northampton County Court until 7 February when it was transferred to the High Court. The reasons for transfer were (a) jurisdictional issues but principally (b) the failures of the local authority to issue care proceedings timeously and thereafter to comply with court orders. The matter first came before me on 1 April 2014. In addition to making directions for the future conduct of the case, I made the following orders:

"4. Further the Local Authority shall file and serve by 4pm on 4th April 2014:

(i) A letter from the Director of Social Services explaining the delay in issuing proceedings in relation to DS and why the Local Authority has failed, from time to time, to comply with the Orders of the Northampton County Court;

(ii) A letter from the solicitor with conduct of the case explaining the failure of the Local Authority legal team to respond to emails sent, from time to time, by solicitors for the child.

10. The Case Accountable Social Worker and Service Manager or other Senior Manager shall attend the hearing of 11th April 2014."

12. The letter from the Director of Children's Services, dated 7 April 2014, makes for very depressing reading. The relevant extracts are as follows:

"The allocated social worker was inexperienced with regards to care proceedings and the decision was taken for her to be supported by a social worker with more court experience. Unfortunately this did not happen until August 2013.

It is accepted that the lack of progress as a consequence of pre-proceedings discussions should have promoted a more immediate response to initiating care proceedings. This failure was the initial cause of drift and delay in determining DS's future. This situation has been compounded by a number of changes at a managerial level in which the progression of the care plan has been undermined through lack of consistent oversight. In addition different managers held differing perspectives in terms of how the plan should be progressed and did not provide sufficient direction.

As a Local Authority we acknowledge this practice is unacceptable and has resulted in permanency being delayed. Although the case has been slow to progress our actions did offer DS protection from any potential harm. However, the Local Authority is conscious that we owe him and his family an apology due to avoidable delay.

In respect of failure to adhere to Court directions the Local Authority unreservedly apologises to the Court and other parties for the delay and inconvenience to this honourable court. With regard to the Parenting Assessment which should have been filed on the 28^th February 2014 it would appear the failure to file in a timely manner is as a result of ineffective communication between the social workers and managers. The various parties involved failed to co-ordinate and prioritise this piece of work to ensure that the filing date was adhered to. The assessment of the paternal grandmother (due to be filed on 7^th March 2013) was delayed due to a number of unforeseen circumstances. The first social worker was identified relatively quickly to undertake this task but the planning of this piece of work did not adhere to Northamptonshire's financial policy and procedural requirements or inform senior management of such. Consequently, at short notice the excursion was postponed by senior management.

The second (independent) social worker was engaged on 12^th December 2013. She was familiar with the Latvian culture, could speak Russian, and could communicate in Spanish as well. She was adamant she could also comply with the court time scales. We know she visited Spain and conducted an interview and took various pieces of documentation from the family but subsequently, despite strenuous efforts, became uncontactable. Several weeks passed during which efforts were made to make contact before a decision was made to engage another social worker.

As a result of this it was agreed a senior practitioner would travel to Spain in order for the assessment to be completed. Unfortunately immediately before his departure his wife collapsed and was hospitalised. He was required to remain at home to care for his children. This occurred on the weekend of 15/16 February 2014. The senior practitioner subsequently resigned from his post. An alternative senior practitioner was asked to travel to Spain to complete the assessment. This took place on 11^th March 2014."

13. I cannot begin to understand why an inexperienced social worker who was not familiar with care proceedings was allocated as a social worker for a 15 day old baby. I do not understand why it took until August to provide her with support or why senior managers did not intervene in this case. It is wholly inexcusable for a local authority to take three months to decide to issue care proceedings in respect of a very young baby and then a further five months to issue care proceedings. The fact that the parents are Latvian and that close family members lived abroad, provides no explanation less still an excuse for the extraordinary delay in this case.
14. I appreciate that social services' departments have difficulties recruiting and retaining social workers but it is deeply worrying that over the course of these proceedings DS has been allocated no less than eight different social workers. It is evident to me that neither the social workers, nor the senior managers at Northampton Children's Services Department had DS's welfare best interests at the forefront of their minds. Worse still they did nothing to promote them. Their chaotic approach to this young baby's care and future life was dismal.
15. On 11 April 2014 I listed the matter for an IRH on 7 July and for a final hearing on 6 October with a time estimate of 5 days. At the IRH I was told the local authority's assessment of mother was negative. Their assessments of the maternal and paternal grandparents were each positive. The local authority's plan was to place DS with his maternal grandparents and his brother in Latvia.
16. The mother, at that stage, sought the return of DS to her care. She sought to challenge the conclusions of the independent social worker who did not support DS returning to her care. The children's guardian, not without some reservations, broadly supported the local authority's plan.
17. The father was not present. His views were not known. He had been sentenced to a term of imprisonment in this country and had then been deported to Latvia. He is currently serving a term of imprisonment in a Latvian prison.
18. I made directions for the filing of further evidence in readiness for the final hearing.
19. The local authority filed and served its final evidence and care plan very late. No application had been made by the local authority to extend the time for compliance as set out in the directions I had made on 7 July 2014.
20. In Re W (A Child) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1177, The President said at paras 50 to 54:

That the parents and their representatives should have been put in this position is quite deplorable. It is, unhappily, symptomatic of a deeply rooted culture in the family courts which, however long established, will no longer be tolerated. It is something of which I complained almost thirteen years ago: see Re S (Ex Parte Orders) [2001] 1 FLR 308. Perhaps what I say as President will carry more weight than what I said when the junior puisne. I refer to the slapdash, lackadaisical and on occasions almost contumelious attitude which still far too frequently characterises the response to orders made by family courts. There is simply no excuse for this. Orders, including interlocutory orders, must be obeyed and complied with to the letter and on time. Too often they are not. They are not preferences, requests or mere indications; they are orders: see Re W (A Child) [2013] EWCA Civ 1227, para 74.

The law is clear. As Romer LJ said in Hadkinson v Hadkinson [1952] P 285, 288, in a passage endorsed by the Privy Council in Isaacs v Robertson [1985] AC 97, 101:

"It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void."

For present purposes that principle applies as much to orders by way of interlocutory case management directions as to any other species of order. The court is entitled to expect – and from now on family courts will demand – strict compliance with all such orders. Non-compliance with orders should be expected to have and will usually have a consequence.

Let me spell it out. An order that something is to be done by 4 pm on Friday, is an order to do that thing by 4 pm on Friday, not by 4.21 pm on Friday let alone by 3.01 pm the following Monday or sometime later the following week. A person who finds himself unable to comply timeously with his obligations under an order should apply for an extension of time before the time for compliance has expired. It is simply not acceptable to put forward as an explanation for non-compliance with an order the burden of other work. If the time allowed for compliance with an order turns out to be inadequate the remedy is either to apply to the court for an extension of time or to pass the task to someone else who has available the time in which to do it.Non-compliance with an order, any order, by anyone is bad enough. It is a particularly serious matter if the defaulter is a public body such as a local authority. And it is also a particularly serious matter if the order goes to something as vitally important as Judge Barclay's order did in this case: the right of a parent facing the permanent loss of their child to know what case is being mounted against them by a public authority.

21. In Re W (A Child) [2014] EWFC 22 the President observed at paragraphs 3 and 4:

On 24 January 2014, in A Local Authority v DG & Ors [2014] EWHC 63 (Fam), Keehan J had occasion to condemn what he called "the wholesale failure of the parties" in care proceedings before him to comply with case management directions which had been given on a number of occasions over the previous four months. He set out the central part of the passage from my judgment in In re W and added "I, respectfully, agree." He went on to say (para 43):

"The conduct of the parties in this matter and the wholesale failure to comply with case management directions is lamentable. Family practitioners must wake up to the fact that, whatever the difficulties presented by public funding issues and/or the pressure of work, the court will no longer tolerate the failure of parties to comply timeously with court orders. Those failures simply lead to unacceptable delays in the proceedings which are wholly inimical to the welfare of the children involved."

I agree with every word of that.

Two weeks later, on 6 February 2014, in Re A (A Child) [2014] EWHC 604 (Fam), another care case, Theis J had similar cause to condemn what she called the "air of indifference by the parties as to the fact that there had been woeful non-compliance with court orders". She expressly associated herself with what Keehan J and I had said. She added this (para 12):

"There needs to be a more hands-on approach by all parties with regard to compliance with court orders. No party should be able to sit back as a spectator and watch non-compliance with orders and not shoulder any responsibility that flow as a result of those failures. The air of indifference by all parties in this case at the hearing in September to the fact that the father had not been served for five months was shocking."

Again, I agree with every word of that.

22. This local authority plainly had no regard to nor heeded any of those observations whatsoever. The Family Court will not tolerate a party, let alone a public body charged with the care of so very young a child, ignoring court orders. The result of so doing, as in this case, is a wholly unnecessary and harmful delay in the planning and placement of the child.
23. At the final hearing, arrangements were in place for DS to travel, in the company of his maternal grandfather, to Latvia on 17 October. The mother disputed that DS could not be returned to her care but she did not oppose the placement of DS with her parents under the auspices of a Special Guardianship Order ('SGO').
24. The case could not be finalised because further work had to be undertaken by the local authority to facilitate DS's placement in Latvia, to assess his needs when placed there and to ensure there was sufficient and adequate support in place for the maternal grandparents to care for DS. In short, the local authority needed further time to file and serve a comprehensive SGO support plan.
25. I directed that the local authority should explain its further failures and inadequacies in planning for DS and in complying with court orders. I ordered:

a) The Local Authority shall file and serve by 4pm on 7^th November 2014 a statement in which it details its response to the following matters as raised by Keehan J on 7th October 2014 namely:

(i) The delay in issuing proceedings;

(ii) the failure to comply with previous orders;

(iii) the delays in assessment and planning;

(iv) problems in facilitating DS's contact with his mother from time to time;

(v) the absence of consideration of a Special Guardianship Order in the Applicant's final evidence;

(vi) The extremely late service of a final statement and care plan;

(vii) the reasons behind the high number of social workers involved in this case and the apparent reliance of the Applicant on locum social workers

b) The Assistant Director/Director (as may be advised) of the Northamptonshire County Council shall attend the hearing on 19^th December 2014 to:

i) explain why the local authority shall not be liable to pay the wasted costs of the respondents unless the above directions are complied with in full and on time; and

ii) to deal with any outstanding issues arising from the respondent's Human Rights Act claims.

iii) Answer any outstanding questions by the parties or the court as to the conduct of the proceedings.

26. Those explanations are set out in the statement of the service manager dated 7 November 2014. The service manager sought to explain the failure of the local authority to consider the issue of a SGO in its final evidence and the late service of the same as follows:

"There is no acceptable explanation of why a Special Guardianship Order was not considered in the final evidence. There was a great deal of discussion prior to the court hearing on 6.10.14 about what type of order would be best to facilitate DS going to live with his grandparents in Latvia. A Special Guardianship Order was specifically discussed on the Friday before the court hearing. Unfortunately, due to the extreme lateness of the final evidence and submission of the care plan, the quality assurance processes that should have taken place were missed. "

and later

"There is again, no acceptable reason for the extreme late service of the final statement and care plan. This does relate partly to the changes of social workers and managers and a recurrence of the differing views about the direction the plan should take which is referred to in point (i) and (iii) above.

On 16.9.14 after reviewing the case and contacting DS's maternal grandparents in Latvia, the current social worker discussed some concerns about the care plan with her senior practitioner and her team manager. Her specific concerns were:

1. MGM does not have leave to remain in Latvia

2. MGM would effectively assume the role as main carer yet, no assessment has been undertaken of her due to her immigration status.

3. The fact that MGM would allow her daughter unsupervised contact with DS would be of concern

4. MGF has only been given permission by the Orphanage Court to care for his other grandson, until 18.09.15, it is therefore unclear what will happen to the child when this date expires.

With the agreement of her line managers she contacted the local authority legal department to discuss whether the plan should be changed to DS going to live with his grandparents in Spain.

I was alerted to the proposed change in plan. In addition to email and telephone conversations, a meeting took place 24/09/14 with counsel, the Local Authority solicitor for the case, the social worker, the team manager, the senior practitioner, and myself. The concerns were addressed, and it was agreed by all that the current plan for DS to go to live with his grandparents in Latvia was the most suitable option. A schedule of actions was agreed at the meeting. At that point, it was anticipated that the Local Authority would still have sufficient time to meet the court deadlines, although it was recognised that the work would need to be prioritised. Unfortunately, some of the tasks took longer to complete than anticipated, in particular, the liaison with the Orphan's Court in Latvia, although we have now made a good contact there and gained valuable advice.

I would like to personally offer an unreserved apology for this later delay to the Court and to DS and his family."

27. It is extremely unfortunate that after so many egregious errors made by this local authority in respect of this child, it continued to act in the same vein right up until the closing stage of these proceedings. I do not consider the explanations put forward by the service manager to be at all adequate. She attempted to defend the wholly indefensible.
28. The final hearing was listed on 19 December. On that occasion I was able to make final orders to secure DS's placement with his maternal grandparents in Latvia.

Outcome

29. Despite the appalling delays in this case, the outcome for DS is wholly satisfactory. On 17 October he was placed with his maternal grandparents in Latvia. At the final hearing in December, I was told that not only had DS settled well with his grandparents, he was thriving in their care.
30. Prior to the final hearing the children's guardian had formally notified the local authority that she intended to issue proceedings in respect of the local authority's multiple breaches of DS's human rights contrary to Article 6 and Article 8 of the European Convention on Human Rights and Fundamental Freedoms A50 ('the Convention').
31. The mother issued proceedings against the local authority claiming damages for various alleged breaches of her Article 6 and Article 8 Convention rights.
32. Despite the appalling conduct of the local authority hitherto, it is right that I record that at the final hearing the local authority conceded it was liable in respect of both claims. It accepted it had acted in violation of DS's and the mother's article 6 and article 8 convention rights as follows:

(a)  The local authority failed to take any protective action to safeguard the child despite having concerns that he was at risk of suffering significant harm between 15 and 30 January 2013, in breach of his article 6 and 8 rights.

(b)  Whilst the child was accommodated pursuant to section 20 CA on 30 January 2013, a decision to initiate proceedings was not made until 23 May 2013 and an application for a care order was not made until 5 November 2013. Over this period of 11 months the child was without access to any independent representation of his welfare interests and had no access to any remedy or recourse and no person was exercising parental responsibility for him, in breach of the child's article 6, 8 and 13 rights.

(c)  The local authority, by its acts or omissions, caused or contributed to a series of delays in the filing of necessary evidence during the course of the care proceedings and the final evidence filed for hearing in October 2014 was inadequate and incomplete, in breach of the child's and mother's article 6 rights.

(d) The delays and general mismanagement of the case by the local authority has been seriously prejudicial to the child's welfare and the child's and mother's ability to enjoy a family life with a member of his extended family prior to November 2014, which may have irredeemable consequences for the child's future welfare and development. Such failures were in breach of the child's article 8 rights.

(e)  The child and mother were subject to a high turnover of social workers and locum social workers with conduct of his case file leading to a lack of cohesive, comprehensive management and care for a significant period of time and in breach of the child's and mother's article 6 rights and prejudicial to their article 8 rights.

(f)  The local authority failed to organise contact between the child and his mother in accordance with an explicit order of the court and the advice of the Children's Guardian for a significant period of time and poor organisation and communication by the local authority led to various sessions of contact being cancelled. Such failures were in breach of the child's and mother's article 8 rights.

33. The local authority agreed to pay damages:

i) to DS in the sum of £12,000;

ii) to the mother in the sum of £4,000; and

iii) to pay a sum of £1000 to the maternal grandparents to assist them in their care of DS.

I was helpfully referred to a number of authorities in which damages had been awarded against local authorities who had acted in breach of a child's and/or a parent's human rights. Having reviewed those authorities I am entirely satisfied that the damages offered by the local authority in this case are entirely appropriate.

Conclusion

34. At the very final stage of this case the local authority accepted its wholesale failure of DS and his family. I am grateful to the current senior management of Northamptonshire Children's Services Department for acknowledging the same.
35. The catalogue of errors, omissions, delays and serial breaches of court orders in this matter is truly lamentable. They would be serious enough in respect of an older child but they are appalling in respect of a 15 day old baby. Each day, each week and each month in his young life is exceedingly precious. Where so young a child is removed from the care of his mother or father his case must be afforded the highest priority by the local authority.
36. The use of the provisions of s.20 Children Act 1989 to accommodate was, in my judgment, seriously abused by the local authority in this case. I cannot conceive of circumstances where it would be appropriate to use those provisions to remove a very young baby from the care of its mother, save in the most exceptional of circumstances and where the removal is intended to be for a matter of days at most.
37. The accommodation of DS under a s.20 agreement deprived him of the benefit of having an independent children's guardian to represent and safeguard his interests. Further, it deprived the court of the ability to control the planning for the child and to prevent or reduce unnecessary and avoidable delay in securing a permanent placement for the child at the earliest possible time.
38. I trust that the events of the first 23 months of DS's life will not have a detrimental impact on his future development and his emotional and psychological well being. There is a real risk they will do so.
39. I am grateful for the assistance I have received from all counsel in this unfortunate and woeful case.