Moving from safeguarding concern to instituting proceedings

The Court of Protection team at 39 Essex Street examine two rulings highlighting the importance of a critical and early rigorous analysis of the evidence available to support contentions advanced before the court.

Costs and the abandonment of a fact-finding process

In A Local Authority v HS & Ors Cop Case COP1201711T applications for costs were made against a local authority that withdrew, at a late stage in proceedings in the Court of Protection, allegations that one of the parties, HLS, had sexually abused the subject of the proceedings, his sister, HS.

HLS and the Official Solicitor, on behalf of HS, sought orders for their costs in relation to the allegations from the time they each became involved in these proceedings, to 28 May 2012, when the local authority withdrew its allegation of sexual abuse and the scheduled three-day fact-finding hearing became unnecessary. They also sought their costs of the costs hearing.

DJ Eldergill recalled the statement of principle in VA v Hertfordshire [2011] EWHC 3524 (COP) that a costs order may be justified where there has been “substandard practice and a failure by the public bodies to recognise the weaknesses of their own case and the strength of the cases against them.”

The district judge stated (at paras 185 to 188):

“Cogent evidence never existed. It should have been obvious long before these proceedings were commenced — the allegations had been made in 2009 and 2010, giving plenty of time for analysis of whether they were likely to stand up — that there was never any cogent evidence.

The local authority’s solicitor and the senior social workers ought to have been aware of the flaws and the fact that any case based on that evidence would not get anywhere near the threshold required by the court. The local authority’s case was never there.

This is not a case of the local authority being ‘damned if it does and damned if it doesn’t’ or of it being on the horns of a dilemma. The local authority was not expected to investigate and analyse the allegation and evidence to the same high standard later demonstrated by Mr McGuire QC. However, It had plenty of time, and took plenty of time and resources, before proceedings were commenced to come to and defend a position: this was not a case of having urgently to remove someone following an allegation of abuse at home, where a difficult and immediate decision has to be made as to what weight to give a yet-to-be investigated allegation.

There was a prolonged failure on the local authority’s part to recognise the weakness of its case. The allegations were vague and insufficiently particularised. The ‘evidence’ in support was manifestly inadequate. It was internally inconsistent and unreliable. The truth of what was alleged was assumed without any proper, critical, analysis.”

In light of this finding the local authority agreed to pay £53,000 to the Official Solicitor on behalf of HS and £35,000 to HS. These sums were accepted by both parties.

Comment

This case should be read together with the decision of Theis J in Surrey County Council v M & Ors [2013] EWHC 2400 (Fam) which follows immediately below. Both illustrate the vital importance of a critical and early rigorous analysis being undertaken by any party (but in particular a public body) of the evidence available to support contentions advanced before the Court.  

Assessment of reliability of evidence

The case of Surrey County Council v M & Ors [2013] EWHC 2400 (Fam) is of no little importance for the light that it sheds by analogy on the approach that local authorities should take before instituting proceedings upon the basis of safeguarding concerns.

The child in question had been born with significant difficulties and required highly specialist care, spending the first year of her life in hospital. Her parents had been given training whilst she was in hospital in the necessary procedures required for her to be able to be cared for at home, including inflating a small ‘cuff’ used to support her breathing.

Some eight months after the child came home, the local authority made a safeguarding referral; the child was then removed from the parents’ care under a s.20 Children Act 1989 agreement, and care proceedings were instituted by the local authority. The matter was listed for a 13-day fact finding hearing to establish whether the threshold criteria were established.

The local authority’s case, in summary, was that the parents had put the girl at risk of significant harm by cutting the inflation cuff tube on at least two occasions and had failed to properly understand her medical needs, had unreasonably escalated her clinical presentation and had not kept professional boundaries with staff. The threshold schedule had over 50 sub-paragraphs detailing the facts relied upon.

On the ninth day of the hearing, after the court had heard from 22 witnesses and before the local authority had closed its case, the local authority applied to withdraw the proceedings on the basis that it recognised that it would be unable to establish the threshold criteria on the balance of probabilities. The local authority’s application was not opposed by the girl’s parents or her Children’s Guardian.

Theis J granted the application, but considered that it was important that she analyse how the position came about and consider the circumstances surrounding the way the girl had been removed from her parents’ care. As she noted:

“5. It is not suggested that the issues raised in this case should not have been investigated. What is criticised is the way the information has been presented, both before and after the issue of proceedings, and the process that was used by the LA. It has graphically illustrated the dangers of not rigorously analysing the evidential foundation for and against any allegations made and not exercising a balanced judgment. Due to the complexities of the case it required strong, experienced leadership from the LA who hold primary responsibility for safeguarding issues. Put simply, that was not provided and there was no check on the structures that failed to provide what was required in this case.

6. Mr Howe [Counsel for the local authority] has rightly reminded the court of the wise words of Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050 , a case where he declined to hold that the threshold was crossed and observed at paragraph 50 that ‘society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent’ and at paragraph 51 that ‘significant harm is fact specific and must retain the breadth of meaning that human fallibility may require of it’ but that ‘it is clear that it must be something unusual; at least something more than the commonplace human failure or inadequacy’."

Theis J then analysed in extensive and critical detail the decisions taken by the local authority, emphasising the failures in management and forensic analysis of assertions being made about the parents. She was particularly critical of the steps taken to remove the child by way of an ‘enforced’ s.20 CA 1989 agreement, reminding herself that:

“61. In Re CA (A Baby) [2012] EWHC 2190 (Fam) Hedley J provided guidance as to the duty of a social worker to be satisfied that the person consenting to a section 20 accommodation of a child by the LA has capacity to do so, is fully informed and that there are reasonable grounds for removal, with a requirement that such removal should be proportionate. As he observed at paragraph 27 ‘...the use of Section 20 is not unrestricted and must not be compulsion in disguise. In order for such an agreement to be lawful, the parent must have the requisite capacity to make that agreement. All consents given under Section 20 must be considered in the light of Sections 1-3 of the Mental Capacity Act 2005.’ He stressed even where there is capacity, it is essential that any consent so obtained is properly informed and, at least where it results in detriment to the giver's personal interest, is fairly obtained and there is due regard for the giver's rights under Articles 6 and 8 of the European Convention on Human Rights. There is little evidence in this case of any of these important considerations and safeguards being considered. Surprisingly, there is no social services record of E’s removal by the NEAT, who had charge of these decisions.”

Theis J concluded her judgment with guidance which is of sufficient wider importance to merit reproduction in full:

“75. Mr Howe has rightly reminded me that I should guard against ‘Hindsight Bias’ and ‘Outcome Bias’ which is described in The Department of Education’s Guidance on ‘Improving the Quality of Serious Case Review published in June 2013 as follows: ‘Hindsight bias occurs when actions that should have been taken in the time leading up to an incident seem obvious because all the facts become clear after the event. This tends towards a focus upon blaming staff and professionals closest in time to the incident. Outcome bias occurs when the outcome of the incident influences the way it is analysed. For example when an incident leads to a death it is considered very differently from an incident that leads to no harm, even when the type of incident is exactly the same. If people are judged one way when the outcome is poor and another way when the outcome is good, accountability becomes inconsistent and unfair.’

76. However, there is no issue between the parties that unless the LA are working in partnership with the parents and there is informed consent to section 20 accommodation (as described by Hedley J in Re C (ibid)) a proper and fair process should be invoked before a child is removed from the care of his or her parents. Police powers of protection should only be used in exceptional circumstances, where there is insufficient time to seek an EPO or for reasons relating to the immediate safety of the child. Otherwise it should be by way of EPO (in accordance with the principles and guidelines clearly laid down by McFarlane J in Re X (2006) ibid) or by way of an interim care order. Only then can the rights of all parties be properly protected and, most importantly, the parents and the child will have effective access to legal advice and representation. The route used in this case sought to circumvent those important safeguards that ensure a fair process when the State seeks to interfere in family life.

77. This case has demonstrated the vital need to check the sources of information that form the foundation of decisions being made relating to child protection, so an assessment can be made about its reliability. The fact that a piece of information has been repeated many times does not enhance its reliability. In to be given to a meeting by key participants, where important decisions are going to be made (such as a strategy meeting) should be reduced to writing, giving those attending the opportunity to be able to read and consider information in advance, particularly if they are new to the situation. This particularly applies where there is a gap between the request for a meeting and the meeting taking place and where the circumstances are complex, as this case was. This would allow for a process to check information, assess its reliability and strength and ensure more balanced and robust decisions are made.

78. In relation to statements for court proceedings it is essential they are based on contemporaneous records, not recollections made some months later. Repeatedly in this case witnesses when confronted with the contemporaneous records had to revise the contents of their written statements. The importance of ensuring factual information is accurate has recently been emphasised in Re C (Care: Contact) [2010] EWCA Civ 959 ( at paragraphs 42 and 63). In addition, there is an obligation, particularly on public authorities who are seeking orders that interfere with Article 8 rights to family life, for a balanced picture to be presented, not just the negative information, or the facts cast only in a negative light.”

Comment

This case stands together with the costs decision in HS as examples of the pitfalls confronting local authorities discharging safeguarding responsibilities.

Theis J recognised that she had the benefit of reaching her conclusions in the "cold forensic environment of the court process"; it is also, inevitably, the case that (as recognised in the Department of Health’s guidance) hindsight bias can serve to cast a strongly negative light on decisions that ultimately lead to a negative outcome.

However, the guidance given by Theis J, in particular that at paragraphs 77 and 78, is of vital importance to local authorities as a reminder of the importance of the need to identify, as soon as properly possible, the forensic building blocks that will be required in order to move from a ‘generalised’ safeguarding concern to the institution and proper conduct of proceedings.

Absent such clear and prompt identification, and absent strong and effective management both of the immediate management of the crisis and of the steps required to bring the matter to court (which may at times appear not just to march in step, but in fact actively to conflict), the risk is that steps will be taken which will incur significant and ultimately inappropriate financial and emotional costs.

This article was prepared by the Court of Protection team at 39 Essex Street.