Sharon Shoesmith wins her appeal – Obiter J

27 May 2011 by

Shoesmith, R (on the application of) v OFSTED & Ors [2011] EWCA Civ 642 (27 May 2011) – Read judgment

In April 2005, Sharon Shoesmith was appointed as Director of Children’s Services at Haringey London Borough Council.  The appointment by a Council of such an officer is a statutory requirement – Children Act 2004 s.18.  “Baby P” – who was the subject of a Child Protection Plan put in place by Haringey Social Services – died on 3rd August 2007 aged 17 months.

Those directly responsible for his death were eventually all convicted under the Domestic Violence, Crime and Victims Act 2004 s.5.  Their trial, at the Old Bailey, ended on 11th November 2008.  To say the least, the trial was followed by a media hue and cry demanding that heads roll.

On 1st December 2008, Mr Ed Balls MP (then Secretary of State for Children, Schools and Families) held a Press Conference at which he said that Haringey would be considering the employment relationship “this afternnon and immediately.”  He made it clear that his view was the Ms Shoesmith “should not be rewarded with compensation or pay offs” but “that’s a matter for Haringey.”

On 8th December 2008 she was dismissed without any form of payment in lieu of notice or compensation and her internal appeal against dismissal was rejected on 12th January 2009.  In March 2009, Ms Shoesmith commenced judicial review against OFSTED, the Secretary of State and Haringey Council.  Judicial review is concerned with the legality of decision-making.

The judicial review was first heard by Foskett J who, after six days of oral argument and later written submissions,dismissed all of Ms Shoesmith’s applications though he did so with a “lurking sense of unease.”

Ms Shoesmith was successful on appeal to the Court of Appeal (Civil Division).  The case was heard by Lord Neuberger MR, Maurice Kay and Stanley Burnton LJJ though the principal judgment was handed down by Maurice Kay LJ.  A full reading of this is essential – see the judgment.   Ms Shoesmith obtained a declaration that he dismissal was unlawful and will be entitled to compensation though the amount remains to be settled – (see Judgment of Maurice Kay LJ at paras. 128-132).

The concluding remarks of Maurice Kay LJ should be noted by all politicians:

I cannot leave this case without commenting on the way in which Ms Shoesmith was treated. In another case, Sedley LJ was moved to say:

“It seems that the making of a public sacrifice to deflect press and public obloquy, which is what happened to the appellant, remains an accepted expedient of public administration in this country. (Gibb v Maidstone & Tunbridge Wells NHS Trust [2010] EWCA Civ 678, (at paragraph 42)”

In my view, it is also what happened in the present case.  Those involved in areas such as social work and healthcare are particularly vulnerable to such treatment.  This is not to say that I consider Ms Shoesmith to be blameless or that I have a view as to the extent of her or anyone else’s blameworthiness.  That is not the business of this court.  However, it is our task to adjudicate upon the application and fairness of procedures adopted by public authorities when legitimate causes for concern arise, as they plainly did in this case.  Whatever her shortcomings may have been (and, I repeat, I cannot say), she was entitled to be treated lawfully and fairly and not simply and summarily scapegoated.

Another point arises from para. 3 of Maurice Kay LJ’s judgment where His Lordship noted – “It is a feature of the scheme under the 2004 Act that a DCS is likely to be inexperienced in either education or social work.” (Ms Shoesmith was experienced in education but not social work). Perhaps this observation is something which the government might choose to consider.

An appeal to the Supreme Court is under consideration.

This post originally appeared on the Law and Lawyers Blog and is reproduced here with permission and thanks.

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  1. James Wilson says:

    It was all a bit predictable – the decision itself (that a fair procedure had not been followed) and the outcry that ensued from the popular press. I suppose it’s too much to hope that in any equivalent situation in the future:

    1. The minister will be advised correctly about lawful procedure

    2. The minister will heed that advice

    3. The minister’s advice won’t be necessary anyway, because any Shoesmith equivalent will accept responsibility for her department’s failings, notwithstanding the absence of any specific personal involvement, and resign accordingly?

  2. ObiterJ says:

    I agree that the judicial review was not concerned with whether Sharon Shoesmith, as the Director of Children’s Services at Haringey London Borough Council, was blameless or blameworthy. The article did not suggest otherwise. It was all about the legality of her dismissal – the process followed.

    This apart, one suspects that ANY Secretary of State would probably have used his powers in much the same way.

  3. Felix Labinjo says:

    The issue before the Court of Appeal was not whether Sharon Shoesmith, as the Director of Children’s Services at Haringey London Borough Council, was blameless or blameworthy but whether she was treated lawfully and fairly. As Lord Justice Kay wrote in his judgement, “Whatever her shortcomings may have been (and, I repeat, I cannot say), she was entitled to be treated lawfully and fairly and not simply and summarily scapegoated..”

    Pending any possible appeal by the Department for Education to the Supreme Court, the current ruling is that the directions of the former Children’s Secretary of State (Ed Balls) were vitiated by procedural unfairness and that Haringey’s decision to dismiss Ms Shoesmith was itself unlawful and void.

    If nothing else, the sacking of Ms Shoesmith was “pour encourager les autres.”

  4. Public Outcry says:

    The point of course being ignored here, in very much the same vein as that of Margaret Hodge re Islington, is that a child died and died heinously when the management could have done a lot better and the responsibility must rest as squarely on Shoemsmith’s shoulders as much as everyone else in the chain right down to the front line workers.

    This is precisely where the profit driven, target driven, American culture of public office has gotten us, managers are so tied up with quota’s, budgets, personnel management and more meaning that they have little or no time for formal management of workers and their team leaders.

    The point too is well made that this woman was an educational social worker, wholly unsuited for child protection, like Hodge, Shoesmith should have kept a modicum of oversight on all cases, been briefed often on cases of worry and concern, liaised and communicated across the team spectrum and she did not.

    What I do find rather worrying is the lack of remorse, Baby P died on their watch and all they are interested in is securing their pensions, and this is something that is rather forgotten, parents lose their children and social workers and their managers go home for tea and fun with their families regardless if they do a good job or not and this begs the question once again, social workers MUST be criminally liable as the police and other services are, if someone died due to police negligence, there would be a furore and if it was avoidable negligence, the officer would face disciplinary as well as potential criminal charges, why is this not the same for social workers?

    Of course a lot comes down to the mindset in social work, it is very rare to see a social worker admit they are wrong, they seem to know better always and it is that mindset that we need to change as well as instilling a public oversight into family courts, care proceedings, abuse cases, we need to use these tools to start implementing a real change in social work.

    Too many of the bad old types of social workers still operate, many of them are managers and higher, it is that we need to remove, to retrain, to weed out and replace with highly efficient, well motivated, well trained workers, in addition to that, a regular psych test similar to forces and the police should be implemented on workers to ensure that they are not burning out or developing bias’s or beginning to see the “abuse bogeyman” in everything they see or do, with real reforms and real changes like this, this would see in time a proper profession and service emerge that could be trusted, that could be trusted with the protection of our children and it would no longer be a despised and hated profession due to the fairness it would show to those using or being part of their investigations.

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