“Lamentable”, “egregious” and “wholly indefensible”: High Court lambasts local authority’s conduct of care proceedings

1 February 2015 by Jim Duffy

Northamptonshire County Council v AS, KS and DS [2015] EWFC 7 – read judgment

A Family Division judge has awarded damages under the Human Rights Act against a local authority in what he described as an “unfortunate and woeful case” involving a baby taken into foster care. Mr Justice Keehan cited a “catalogue of errors, omissions, delays and serial breaches of court orders” by Northamptonshire County Council. Unusually, the judge decided to give the judgment in this sensitive case in public in order to set out “the lamentable conduct of this litigation by the local authority.”

On 30 January 2013, the local authority placed the child (known as ‘DS’) with foster carers. He was just fifteen days old. In the weeks prior to DS’s birth, his mother’s GP had made a referral to the local authority due to her lack of antenatal care and because she claimed to be sleeping on the street. The mother then told a midwife that she had a new partner. He was a heroin addict.

After the birth DS’s mother avoided seeing her midwife. She frequently moved addresses and conditions at home were exceedingly poor. Three days before DS was taken into care, his mother told social workers that her new partner was being aggressive and threatening to her. She reported that he was leaving used needles around the house.

DS’s mother agreed to his being accommodated under Section 20 of the Children Act 1989. It provides that every local authority shall provide accommodation for any child in need in their area who appears to them to require it as a result of:

• there being no person who has parental responsibility for him;
• his being lost or having been abandoned; or
• the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation and care.

Keehan J questioned how effective the mother’s consent had been when it was sought without her having had the benefit of an interpreter. As we shall see, he also questioned the appropriateness of using section 20 in the first place.

Inexplicably, almost four months then elapsed before the local authority decided to initiate care proceedings on 23 May 2013. “Quite astonishingly”, in the judge’s view, the issuing of those proceedings did not take place until 5 November.

And it got worse. There were further delays caused by the “egregious failures” of the local authority:

• To undertake assessments of the mother, of the maternal grandparents, who were residing in Latvia, and of the Spanish-based paternal grandparents.
• To undertake any proper or consistent care planning for DS; and
• To comply timeously or at all with court orders for the filing and service of assessments, reports and statements.

When the case first came before Keehan J on 1 April 2014, he ordered the local authority to file and serve by 4pm on 4 April two letters:

• one, from the Director of Social Services explaining the delay in issuing proceedings in relation to DS and why the local authority had failed to comply with court orders;
• the other from the solicitor conducting the case explaining the failure of the local authority’s legal team to respond to emails sent by the child’s solicitors.

A letter from the Director of Children’s Services (boldly dated 7 April) made “for very depressing reading.” Among the explanations put forward were that the allocated social worker was inexperienced with regard to care proceedings. Although a decision had been made for her to be supported by a colleague with more court experience, this did not happen until August 2013. Staff changes at managerial level were also thrown into the mix, although it was accepted that “this practice was unacceptable and has resulted in permanency being delayed.” An apology was made.

The letter also apologised for the failures to adhere to court orders. It pointed to ineffective communication between social workers and managers, and put forward some fairly long-winded explanations as to why assessments had not been carried out on time. Keehan J’s response was unsympathetic:

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.

He described as “deeply worrying” the fact that over the course of his short life DS had been allocated eight different social workers:

It is evident to me that neither the social workers, nor the senior managers… 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.

The judge referred to the dicta of the President of the Family Division in Re W (A Whild) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1177, in which Sir James Munby referred to the “slapdash, lackadaisical and on occasions almost contumelious attitude which still far too frequently characterises the response to orders made by the family courts.” In that case, the President spelt out in words of one syllable the need to comply with court orders. In Mr Justice Keehan’s view, “[t]his local authority plainly had no regard to nor heeded any of those observations whatsoever.”

The judge noted that even at the final hearing when arrangements were in place for DS to travel to Latvia to live with his maternal grandparents the local authority needed more time to file and serve a comprehensive support plan for the Special Guardianship Order (SGO) in DS’s case. Among the explanations Keehan J sought from the local authority was why there had been no consideration of an SGO in its final evidence. The relevant service manager’s attempts to explain the position did little to placate the judge:

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.

The mother issued proceedings against the local authority seeking damages for breaches of her Convention rights, namely her Article 6 right to a fair trial and her right to respect for family life protected by Article 8. Wisely, the local authority conceded liability, agreeing to pay £12,000 to DS and £4,000 to his mother. It also agreed to pay the maternal grandparents £1,000 to assist in the care of DS who, happily, is now thriving in their care.

Keehan J concluded by making clear that where so young a child is removed from the care of a parent “his case must be afforded the highest priority by the local authority.” He considered section 20 of the Children Act to have been “seriously abused by the local authority in this case.” He added:

I cannot conceive of any 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 circumstances and where removal is intended to be for a matter of days at the most.

The Judge explained the practical effect of the section 20 order in this case, which deprived DS of the benefit of having a children’s guardian to represent and safeguard his interests. It also deprived the court, he said, of the ability to control the planning for DS and to prevent or reduce unnecessary and avoidable delay in securing a permanent placement for him at the earliest possible time.

The court’s withering assessment serves to emphasise that the existence of undoubted financial pressure upon local authorities and family law practitioners will offer little refuge when their handling of sensitive care proceedings finds itself in the judicial headlights. The comments of both Keehan J and the President of the Family Division on compliance with orders resonates with the general approach to compliance lying at the heart of the new relief from sanctions regime. As such, the lessons are not confined to the unfortunate factual context of this case.

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