Shoesmith considers appeal after High Court blow

Sharon Shoesmith is considering an appeal after last week losing her judicial review action over her sacking in the aftermath of the Baby Peter case.

The former director of children’s services at the London Borough of Haringey was replaced in December 2008 following an Ofsted report on her department’s failure to protect the child, who died after sustaining more than 50 injuries.

Justice Foskett said he could find “no sustainable basis for the suggestion that there was political or other improper interference in the Ofsted inspection or the report-writing process by or on behalf of the Secretary of State”.

Shoesmith had claimed that the Ofsted report was “beefed up” following Ed Balls’ intervention and that she had been made a scapegoat.

The High Court judge rejected as “too simplistic” the suggestion that the Secretary of State’s decision to commission the Ofsted inspection was driven by party politics, and also rejected that the suggestion that the minister was improperly influenced by a petition presented by a national newspaper just days before Shoesmith was replaced.

Justice Foskett said he accepted Ofsted’s case that the purpose of their inspection was to inspect the overall functioning of child safeguarding in Haringey at the time and that it did not involve an inquiry into the specific roles or conduct of Shoesmith or any other individual.

He nevertheless said there was “overwhelming evidence that the circumstances of the inspection, rushed as it was and in the full media spotlight, was far from ideal both from the point of view of the inspectors and those at Haringey trying to cooperate with the inspection”.

There were strong grounds for thinking that Shoesmith and others did not have “a full, fair and measured opportunity” to put over their position about their own personal responsibility for what was found, he added.

The judge ruled that the Secretary of State’s decision to replace Shoesmith could not be impugned on grounds of fairness. He said: “My conclusion is that, in the particular circumstances of this case, fairness was achieved, albeit by no means at the level of normally to be expected where a disciplinary or similar process was being pursued.”

The High Court judge nevertheless criticised Ed Balls for suggesting at a press conference that Shoesmith should be dismissed without compensation. “That, as he said himself, was a matter for Haringey and it was wrong to give support to that position no matter how strongly some people might have felt about it,” the judge said.

Justice Foskett did, however, say he was not satisfied that the procedures followed by Haringey in sacking Shoesmith “gave the appearance of fairness”.

He said: “Comments were made on behalf of the Council in the immediate aftermath of the Secretary of State’s decision on 1 December that gave the appearance that the outcome of any disciplinary process was a foregone conclusion and that, not merely would the claimant be dismissed, but that she would be dismissed without compensation.”

The judge’s views are not binding on the Employment Tribunal, however, where proceedings will now restart. He nevertheless expressed concern about who would take up the role of director of children’s services if they can be removed in these circumstances without a proper and obviously fair process. This could impact on the structure of child safeguarding arrangements throughout the country, he said.

Admitting that he felt a “lurking sense of unease” when reaching his conclusions, Justice Foskett recommended discussions between central government, local government and representatives of those employed in positions that might be affected by a direction under 497A of the Education Act 1996.

These would take place with a view to establishing a protocol for dealing with this kind of situation in the future because the judge did not “think any party will truly look back at how matters were handled in this case with complete satisfaction”.

He also stressed at the outset the narrow focus of the issues that he was required to consider. The judge said: “That focus relates to a review of the fairness or otherwise of the procedures adopted by Ofsted, the Secretary of State and Haringey – the focus is not on the merits of the decisions made, nor upon whether the Ofsted inspectors were correct in their assessment of Haringey at the time.”

Justice Foskett said he was unhappy that he had still not received a full explanation of Ofsted’s initial failings in relation to disclosure of relevant material, which substantially delayed the outcome of the case. He added that he would be taking this up with the Treasury Solicitor.

The lawyers for Shoesmith, national firm Beachcroft, said in a statement: “We are disappointed that despite the serious criticisms made by the judge of Ofsted, the Secretary of State and Haringey council, the judge has not upheld Sharon’s claim for judicial review. We nevertheless welcome the finding that Haringey acted unfairly in dismissing Sharon.”

They added that the legal team “will be giving careful consideration to the judgement, which runs to some 200 pages, and considering whether there are grounds for an appeal”. This will take time, they said.

Ed Balls said that if presented with a similar situation again, he would take the same decision. He added: “My concern was, at all times, for the safety of children in Haringey and wider confidence in child protection arrangements across the country.”

Christine Gilbert, chief inspector at Ofsted, said the judge’s conclusion was “clear: Ofsted’s inspection process has been vindicated”.

She added: “We carried out a robust inspection, came to a sound conclusion based on the evidence and acted fairly.”