England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		3/12/2020

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Mr Justice Newton:

1. This is the fourth and last judgment in proceedings concerning J born on 17/6/06; the Court having previously delivered judgments on 16/12/19 (in respect of threshold), 20/1/20 (in respect of contact), 23/6/20 (in respect of J's placement and his wishes and feelings). In order to properly understand the history and background to this judgment, those judgments need to be read first, and are incorporated into this judgment.
2. On 12/6/18 H (J's half-sister) who was 8 weeks old, was found dead in her cradle at home. Whilst initially it was thought that she was the victim of a tragic cot death, subsequent enquiries revealed extensive multiple injuries. Her parents, the mother and E were arrested on suspicion of murder on 19/6/18 and remanded in custody. A local authority issued care proceedings in respect of J. Since those events, until the days following my judgment of 23/6/20, he has lived with family friends. To be clear therefore, he was in their care from 12/6/18 to 25/6/20. Since the end of June 2020, he has lived in a house provided by his mother, cared for currently by his grandmother. Going forward there is no dispute that he should remain living in the same house, cared for by his mother.
3. This hearing has effectively been the second half of the enquiry carried out in June but with a wider remit, that is to say, the role of the local authority in this difficult and serious case.
4. Before turning to the live issues, it is worth recording some of the history of the proceedings. Originally the fact-finding hearing was scheduled to be heard over several weeks over the summer of 2019. Although the local authority objected, I decided, having regard to the many difficult issues and the proximity of the murder trial that the hearing should be vacated to await the verdict of the jury. In the criminal proceedings psychological reports prepared on the mother persuaded the prosecution to offer no evidence against her; she was formally acquitted (an aspect with which the Local Authority evidently struggled) and gave evidence in the trial. E was convicted by the jury and sentenced to life imprisonment with a minimum term of 20 years. As I record in more detail in the Judgment of 16/12/19, the mother's reactions (immediately post death and later) were really quite remarkable, even bizarre; a question arose as to whether those reactions were a result of the mother's very unusual personality features and disorder, or whether they might be evidence of knowledge of E's past, he having previously received a substantial sentence of imprisonment (9 years) for similar offences. An important aspect which requires public scrutiny is how a man like E with a clear history of serious violence towards children can disappear off the radar and offend again (I should mention that he had also been investigated on another occasion for different child related allegations which had not proceeded). An important and central question arose as to the mother's knowledge of E's past, whilst the mother had spoken about his previous incarceration, she claimed not to have known the detail (as E to the contrary claimed).
5. The redrafted Threshold Triggers were not helpfully drafted or particularised (especially in relation to paragraphs 9 and 10 in relation to E's behaviour and conviction). At the hearing on 16/12/19 where the Court gave consideration to the particulars of the findings to be sought by the Local Authority, I was taken, quite needlessly, through the distressing and shocking injuries sustained by this vulnerable baby, as though somehow that justified the total absence of any evaluative reasoning to the sought particulars. The local authority contended that the mother was minimising, dissembling and misleading the Court in relation to E, both in relation to his past and with regard to his behaviours generally. Within the papers there were a significant number of evidential contradictions and inconsistencies which might well have formed the basis for such contentions.
6. Obviously the only safe way to proceed was to have a satisfactory and secure factual basis, identifying past events. At that hearing the local authority was unable to identify or particularise relevant passages in the medical evidence (which might have supported the bald assertions being made). It became clear also that notwithstanding the mother's acquittal in October 2019, for the local authority nothing had changed since their original contentions in March 2019. I made it as plain as I could, that whilst it was obviously open to the local authority to argue its contentions, for example, did the mother know of the quality of the conviction? Did she know that it put herself, her children, possibly other children at risk? Was each occurrence of injury to H evident? Should she have known? Did she notice and not act? All those, and may other questions and contentions obviously arose. These were serious allegations which might well be central to the determination of the case and required proper identification. I ordered the local authority to particularise their threshold document, making an order that they must do so by 14.1.20.
7. In the event, to my surprise, just days later, the local authority gave notice that it had chosen not to pursue that route, and effectively abandoned its case on those aspects, relying on the more general (and accepted) assertions pleaded in paragraphs 1-8 of the Threshold Statement.
8. That brief background paints the context of the Court proceedings for what was happening on the ground and for J, his foster carers, the social workers and the mother.
9. In common with the local authority, J's foster carers as early as July 2018, held very strong views about the mother; in particular that she had known the detail, or some of the detail of E's past. That was especially evident when it became known at the end of September 2019 that the mother was to be acquitted; they were frustrated, angry, and disappointed and considered that the mother "had got away with it". Additionally, they made it clear that they would no longer be putting themselves forward as long term carers for J (a fact which whilst known to the social worker was not disclosed to J, the parties or Court until very much later). It is the first instance of many where vital information was not disclosed. Had it been, the troubling and inexplicable expressions by J, the conundrum which the Court faced in January 2020 concerning J's expressions, might more readily have been understood and resolved.
10. I heard evidence from the Social Worker and also the Assistant Director of Children's Services. I have deliberately not named the social worker because I understand the enormous pressures placed on individuals and departments. Whilst I consider her management of J's case has spectacularly fallen well below the standard that is acceptable, I do not know however, the level, quality or content of her supervision, as presumably existed, having not heard evidence about it. The social workers case management was at best passive, and I must assume reflected in supervision too, reflected as it was by what was happening on the ground, and the almost complete lack of openness in particular with the court . Either way, this was the ultimate responsibility of the local authority, resulting, I am clear, in J remaining in foster care, in fact in a thoroughly corrosive environment for 9 months longer than should have been the case. He should have been restored to the care of his family at least 9 months previously.
11. In setting the background I have already averted to the very strong submissions made to the Court on 16 December 2019. What they do record is a very clear mindset as to the culpability of the mother. It is, I have finally concluded, the mindset of the local authority which lies at the root of the very serious failings which have occurred in this case. Allowing for the very great pressure on the social worker, both on appointment and when she gave evidence (knowing that she would be subjected to very sustained and fundamental criticism), I was struck by how little she had applied herself to this case or given herself an opportunity to even properly read the case files. Her early visits on 22 July 2019 and 2 September 2019 were framed by her almost total lack of focus or enquiry. Quite simply she was not on top of the case and was not therefore in any position to think anything through, let along give it a proper analysis. Contrary to what is submitted to me by the local authority, what she discovered at the meeting on 30 September 2019 from the foster carers in respect of their approach , could not have been made clearer. To suggest that what she was being told by them was somehow an emotional blip, an exceptional reaction (not worthy of disclosure) illustrates how little grip she had on the case. All the early failings are sought to be explained by not giving the case (any) proper attention.
12. A moment's thought might have raised the questions, not just the impact on J (as to what had gone on, and if left unchecked), but surely a child of this age should at least be able to know what options might be available to him. Leaving aside those two things it is wholly unacceptable that such information is withheld from the Court or the parties. Indeed, it was part of the canvas that was known by the Authority and was withheld from the Court when making absolutely crucial decisions on 16 December 2019, 20 January and 27 January 2020.
13. Even more troubling, far from challenging the expressed opinions of the foster carers, nothing seems to have been said at all. I have concluded reluctantly that the only explanation for that was indeed because (as evidenced on 16 September) the local authority shared the foster carers' views. I have already dealt with their abrogation of responsibility on 4 October 2019 (in getting the foster carers to inform and discuss the mother's acquittal with J).
14. The approach to the hearing on 16 December was also illustrated by

A. The authority opposed the application by the mother for the resumption of her son's care and even unsupervised contact. Whilst it is true that the headline plan was apparently for J to return home, the local authority pushed strongly for a fact-finding hearing, as set out in my earlier judgment, describing the mother as "minimising, dissembling and misleading the Court". Whilst in the proceedings those contentions were quickly abandoned,on the ground I have concluded nothing in fact changed for the authority.

B. Prior to the hearing, on 13 December 2019, the foster carers were "reassured" about the local authority's position. The foster carers were clear that they would not support unsupervised contact".

C. After the hearing on 16 December the social worker's manager (who had attended Court) let the foster carers' social worker know the result, (there is I am told a robust dispute between the two as to the account of what was said). The foster carer social worker records "if J was to remain a looked after child until he reaches 18, then contact with his mother would remain supervised at least until he was 16". So clearly illustrating the local authority's real mindset. The team manager claims that this is an inaccurate recollection. I do not need to resolve this point.

15. All the above (and C. if correct) strongly underlines the opinion which the local authority held. If there were any doubt about that, it is strongly dispelled by the really extraordinary 78-page statement filed by the social worker which amongst many things spends several pages 1) setting out the basis upon which the social worker contended that the mother was aware of E's true offences; 2) asserting that the mother should have (and indeed did) noticed the bruising on H before she died and should have taken action, and 3) prefers the analysis of Dr Gordon and Dr Blythe (suggesting that the mother was lying).
16. The social worker attempted to meet questions about those aspects by suggesting that they somehow related to J's wishes and feelings. It was with respect, an explanation which beggars belief .
17. In fact, what it disclosed was a total failure of judgment and understanding, a superficial approach founded on the clear, and misguided, mindset of the local authority.
18. The effect for J has been devastating. The view of the social worker that the foster carers were "amazing" and that "they have J's best interests at heart and I have been truly impressed by their ability to remain child focused despite the extreme stress they have been under" was clearly a far cry from the reality of the situation. The social worker had to accept that in her oral evidence and conceded that she had given too much weight to the foster carers' views of M. It is clear that there was ample evidence, at the time, to know that this was wrong. It is not merely 'with the benefit of hindsight'.
19. The Authority had a wholly negative biased view of the mother of the child they were caring for, and that view was clearly conveyed to J.
20. Consistent with that view, the Authority refused to countenance unsupervised contact for their own reasons, including the foster carers unwillingness to have anything to do with M and their antipathy towards her and being unwilling to keep J should it be decided to be in his best interests to have such unsupervised contact. This, as the Court has already found, was about them, not him.
21. The note of child's solicitor of 7 January 2020 makes disturbing reading. The Guardian contacted the social worker to tell her of the visit and of what was said. The full note was not disclosed until the 20 January 2020 hearing. The response however from the local authority to this was for social worker to immediately visit J herself on 15 January 2020 ,and ask J the self-same questions again (about his wishes and feelings) in response to him having agreed on 7 January 2020 with the Guardian that he wanted to try some unsupervised contact (despite the fact that it is said that he was unhappy at being asked questions repeatedly). At no stage was there any action in response to the information about the foster carers. I have the gravest reservations as to why in fact the social worker visited him that day. It was certainly not because the notes disclosed some new revelation. It had been known for months. It caused no alarm or concern, and no one saw the need to do anything to ameliorate it or even further consider the likely impact upon J. It was just an accepted state of affairs.
22. The sole reason that this state of affairs continued (unbeknownst to the parties or the court) was whilst the Authority were in receipt of substantially more information, they kept it to themselves as a result of , at the very least, a fixed mind set towards the mother. The foster carers, as a result, were never challenged, because the Authority agreed with them, and their reasoning.
23. As I have said, it is very difficult to understand why the social worker visited J on 15 January 2020. She certainly failed to appreciate the role of the foster carers that day and more widely, and as she accepted in evidence had not even weighed up the two competing possibilities as to why J was still saying that he wanted to live with his mother, which of course made his answers even more incomprehensible. Not once did the social worker sit back and even attempt to analyse what she was being told.
24. The social worker, did communicate with the local authority, but excluded the parties and the Court, in evidence she sought to explain what had occurred based on some hitherto undiscovered fear of the mother based on J's experience of living with her, not just in terms of her advices to the Court, but more damagingly and completely misconceived to J himself.
25. At no point did the authority apparently stand back and to consider the effect and influence upon him of the foster carers. So it was that the foundation of the local authority's case was fundamentally flawed and misconceived.
26. The net effect of the above as I have said, was that the trenchant views held by the foster carers went unchallenged. In so doing, the Authority at the very least supported them, and thereby the foster carers' ability to dictate their own terms increased. On 20 January 2020 it now transpires that there was some unseemly bargaining taking place with them on the telephone from court about what they were (not) prepared to do . Whilst dressed up as being about 'J's wishes and feelings' it was no such thing. It was it is now clear entirely about the foster carers, and their needs, never so clearly demonstrated than in their notice to terminate the placement after the court ordered a very limited amount of unsupervised contact to take place. The court should have been told. Even with all of these events having taken place, the Authority sought to put forward the foster carers for the final hearing in March 2020 as long term carers of J, who were "able to prioritise his needs and had his welfare at the heart of their actions." When the Covid-19 pandemic struck, the conduct of the foster carers became even more transparent, not least because the male foster carer became responsible for the organisation and supervision of contact , and had little truck in trying to dress up his thoughts or actions as being somehow in J's best interests. It was obvious within 24 hours of the hearing on 25 March 2020 that the male foster carer had absolutely no intention of allowing J to have private contact with his mother by video link, despite it being professionally supervised.
27. Whilst the Assistant Director of Social Services asserted in his statement that the local authority accepted too easily that the foster carers actions were solely in J's best interests, this fails to recognise the underlying mindset and sequelae that unfolded as a result that allowed this to happen. Having embarked on a flawed approach, since no one ever stood back to analyse what was happening on the ground or take responsibility as they should, there was as a result a systematic pattern of essentially selecting facts to suit the preferred hypothesis and ignoring or rejecting anything that might challenge it. The Assistant Director's statement is with respect a clear example of that. How was it that Authority in any of its personnel, simply failed to appreciate what was contained in the fostering records (that were collated in one place for everyone by 7 February 2020) is a mystery. If someone had bothered to create a chronology the significant deficits might have been revealed. What is crystal clear however, is that the overwhelming evidence existed in fact even on the face of papers, and was simply ignored (the more surprising because the mother's case identified and clearly set out the situation on the ground for J as she saw it), that is that the foster carer were influencing J's wishes and feelings. The Authority responded that this had been considered but "the LA cannot find any evidence of this".
28. This blinkered mind-set of the authority can be the only explanation why, having heard the evidence of the foster carers in June and their views about the mother, that they sought to place J with his father rather than with the maternal family without even any consideration of the mother's, maternal grandmother's or aunt's proposals, or J's wishes and feelings which had not been sought at that point.

Has Essential information kept from the Court?

Non-disclosure - generally

29. All parties are under a duty to the court to provide full and frank disclosure. In particular the arm of the state, the local authority, are under a strict duty to disclose to the court and all parties material which undermines or supports any parties case their case (see Re R (Care: Disclosure: Nature of Proceedings) [2002] 1 FLR 755.) Furthermore, any argument that an authority can claim PII on social work documents held by them to avoid such disclosure was also "confined to history" in Re R.
30. The final hearing in this matter originally commenced on 9 March 2020 but was substantially delayed by issues of non-disclosure generally and specifically.

The overall impact of non-disclosure has resulted in:

i) J living in a thoroughly unhealthy and corrosive environment for almost two years where he was exposed to highly negative views in respect of his mother and extended maternal family to the extent that he now requires counselling/therapy to assist him to repair those relationships;

ii) J's contact and relationship to his mother and extended maternal family being unnecessarily and severely restricted for a period of nine months;

iii) J's reunification to his mother's care was delayed by 9 months;

iv) Greatly delayed and lengthened litigation.

31. On 27 January 2020 the court directed the local authority to file and serve:

i) All records relating to the current foster placement and all records of contact by the local authority with the foster carers;

ii) All discussions between the social worker and J.

32. It is not asserted that social worker deliberately decided in a premeditated way to withhold the information from the Court and the parties. It is, however argued, that the mindset, and belief system within the local authority was such that the import of the female foster carers actions in particular was ignored. It was part and parcel of looking only for information to confirm a particular perspective and giving no thought whatever to any information that might undermine that view. The effect however was the same. The parties and crucially the Court, were deprived of vital information not only at the time that pivotal decisions were being taken in January 2020, but also subsequently, when the Authority seemed simply unable, even in the preparation for a contested hearing, to consider the available evidence and bring it to the fore.
33. Until the 23 January 2020 the court had been told that J's wishes and feelings were firstly to return to his mother's care and if not possible remain with the foster carers.
34. In her position statement for the hearing on 20 January 2020 the Guardian urged the authority to complete the SGO assessment of the foster carers urgently.
35. On 20 January 2020, I was clear (having not been told to the contrary), as set out in my judgment that I understood that the carers were putting themselves forward as J's long-term carers.
36. By paragraph 3 of the order of 20 January 2020 the authority was directed to file and serve "Any available and updated Regulation 24 Assessments of the foster carers."
37. Everyone, save the local authority, were proceeding on the basis that the carers were putting themselves forward as alternative long-term carers for J. Although as is now clear, from 30 September 2019 the local authority knew that this was not the case.
38. The note of the meeting on 30 September 2019 could not be clearer. The female foster carer was clear that "they are no longer putting themselves forward to care for J, regardless of whether he is a LAC child or subject to an SGO" given the mother's acquittal at which they were "angry, frustrated and disappointed."
39. I do not accept the social workers evidence about this (that she took this as an emotional and immediate response which she did not take seriously) for two reasons. Firstly, also originally not disclosed, was her note explaining the carers' views at the meetings on 30 September 2019 and that she would be acting on their views at least in respect of transport to contact.
40. Secondly, the foster care record of 15 November 2019 – almost 6 weeks later (also not originally disclosed) indicates that female carer clearly indicated that she did not want J to know she was not putting herself forward as a long-term carer. The note also records that the social worker had visited that afternoon and "taken J's wishes about where he wants to live in the future."
41. It must surely have been clear to the social worker on 15 November 2019 that the female carer, 6 weeks later, presumably having had that time to calm down, was still saying she was not putting herself forward. Also, in my view, it is inconceivable that the carer did not tell the social worker on 15 November 2019 that she did not want J to know she was not putting herself forward as his long-term carer. The social worker's note of 15 November 2019 has never been produced notwithstanding a number of requests and a court direction to produce it. I am driven to the conclusion that the social worker at best simply acquiesced in the carer's view and did not tell J (just as had occurred on 30 September 2019).
42. On 5 December 2019 a LAC/PPM took place, the conclusion of which was that a transition plan to the mother would be put in place.
43. However, at the court hearing on 16 December 2019 the court was not told of the carers' views (as to being long-term carers) and was not told of the LAC/PPM outcome either, indeed the contrary position was being taken that in effect "everything was at large". For some reason J's letter dated 3 December 2019 was not disclosed until the morning of the court hearing either.
44. The serious results as a result of the Authority's (in)actions were that:

i) The court and the parties were misled from 30 September 2019 into understanding that the foster carers were a viable (even preferred) option as long-term carers for J;

ii) That J himself was deliberately misled into believing that the foster carers were viable options for him;

iii) That inexplicable and ultimately dishonest stance with J in respect of the foster carers was compounded by failing to tell him on 30 September 2019 that his mother was to be acquitted;

iv) That the social worker actively misled J (when taking his wishes and feelings on placement) when she withheld crucial information from him and compounded by then relaying those wishes and feelings to the court as genuine;

v) At the point of mother's acquittal in October 2019 and the local authority abandonment of fact-finding against the mother in late December 2019, J was being actively misled into thinking there were three options (in his mind) – the foster carers, his father, and his mother, whereas in reality there were only two, and his mind probably only one.

45. What I find so inexplicable, is that this crucial information was kept from the court. Made so much worse by the 78-page statement arguing for placement with the foster carers.
46. The social workers stance, and hence that of the local authority is mirrored (indeed in part founded) on the position and expressed views of the foster carers, upon which I have already adjudicated. Both held trenchantly negative views about the mother and considered her culpable for H's death and that she had known of E's previous conviction in respect of a child. These views had persisted from July 2018 and were compounded in October 2019 when the mother was acquitted.
47. The local authority, fully aware of the foster carers' trenchant views about the mother, decided not to disclose them. The first inkling was through the CG's note of her meeting with J on 7 January 2020. It was that note which led to the request for disclosure of the foster care records. It is apparent from the foster care records that both arms of the local authority very clearly knew of the shocking and unsuitable environment that J had been living in and not only failed to disclose it, but somehow chose to ignore it in their position taken at the final hearing on 9 March 2020.
48. There are other examples; resistance by the foster carers to allowing any private video contact between J and his mother during lockdown as referred to above was communicated directly to the social worker. Yet the parties and the Court were not told. Indeed, when the plan for the foster carers simply to 'be around in the background' was presented to the Court on 25 March 2020 it was not explained that this was at their behest. For a further two months the foster carers dictated the terms, and it seems that the social worker was powerless to effect any change in J's best interests. None of this emerged however until 22 May 2020, despite two further hearings taking place in between.
49. Counsel for the Local Authority sought to reassure the court that the Authority was prepared to look at areas for learning and was being responsive. What has occurred since does not persuade me that the Authority has yet faced up to its culpable role in the case , not just of omission, but deliberate and misconceived decision making. On 23 June 2020 I made provision for a statement from the Chief Officer for Children's Services at the express request of the Authority. What was deeply troubling was that whilst he had read the bundles and notes of the Judgement of 23 June, he did not appear to understand the basis of the Judgment of the Court on 23 June 2020. Before making his statement, he had not it seems had sight of any of the Court Judgments (although he referred to having notes of the judgment).
50. So not having undertaken a detailed analysis of the papers he asserted in his statement an acknowledgement of what he saw to be the failings in the case, namely:

i) J's need for an open-minded approach to care planning was obscured by the fostering team;

ii) The views of the foster carers were not challenged when they expressed their intention not to comply with certain contact arrangements (Court Orders), most notably unsupervised contact;

iii) The Local Authority accepted too easily that their actions were solely in J's best interest, without taking the proper steps to check and balance those actions;

iv) The two parts of the local authority [fostering and social worker] were not in communication with one another;

v) The local authority database has been configured in such a way to prevent cross-referencing. The foster carer records are currently not open to children's social workers;

vi) The social worker did not take the opportunity to review everything and give a different perspective when she was allocated;

vii) The local authority missed opportunities to reconsider why J's views changed so rapidly.

51. I might have felt more comfortable if there was some acknowledgment as to why so much had been kept from the parties, and the Court. It can immediately be understood why the Court had immediate reservations about his seven point list. Whilst it is correct that the foster carers had not been challenged and the SW did not appear to have 'reviewed' the case on her appointment, the evidential basis for the remainder of the propositions is I'm afraid misconceived and contradicted by the evidential detail in the case papers .
52. Specifically, it is important to note that whilst the social worker says that "J's need for an open-minded approach to care planning was obscured by the fostering team" , that is simply not accurate. The oral evidence of the social worker, together with the supporting documents conclusively demonstrate that the views of the foster carers , and the obvious risks flowing from them ,were not 'obscured' by the fostering team, they were only too clearly " known "to the children's team, who inexplicably chose to ignore them. They made a decision not to disclose them.
53. It is clear from the records and indeed the oral evidence, that both social workers spoke and liaised with one another on a regular basis - there was full or at least very substantial information sharing. Whilst J's social worker may not be able to access the fostering records on the local authority computer system, she did have access to them from 7 February 2020, but it made no difference to the stance taken by her and of the local authority.
54. Whilst I'm grateful for, and acknowledge and record the local authority's acceptance that they failed to challenge the views of the foster carers (in any way), and whilst I am clear that having regard to the careful chronology in relation to this matter submitted by the authority that the social worker was well aware of the foster carers strongly focused views early on in her involvement, there can be no doubt that the full extent of what was later disclosed to her on 15 January 2020 was not made available to the Court 5 days later at all. It was deliberately withheld, I cannot tell whether it was incompetence or bad faith. What I can conclude, having regard to the 78-page statement later filed and the position taken by the local authority until June 2020 at best it demonstrates a total lack of judgment or professionalism.
55. It is wholly inadequate to say that the local authority had become over reliant on J's expressed views and was not curious enough about discrepancies when his views changed; with the background I have recorded, that simply will not do. There has here I am afraid been breath taking incompetence (with or without bad faith), unassailed by any management structure, resulting in greatly prolonged proceedings and a boy remaining away from his home for at least 9 months longer than should have occurred.