Disclosure and wasted costs: lessons from a recent care case

The case of Medway Council v MA [1] concerned alleged non-accidental injury (arm, rib and skull fracture) to the younger of two children, three months old at the time that proceedings were commenced in December 2024, but now two years old. Fact finding was being adjourned for the third time. Earlier fact-finding hearings had been adjourned through, respectively, judicial unavailability and a geneticist’s report being outstanding. In all there had been fifteen hearings covered by seven judges (nine if those sitting on EPOs were included); inevitably the Court expressed significant concern about the delay involved.

The case featured a difference of opinion on imaging between the radiologist instructed under Part 25 and the originally reporting radiologists. This was particularly important as there had been an earlier presentation to hospital in November 2024 where the mother’s report was accepted by the clinicians and where the local authority’s case was of there being no skull fracture at that point. One of the geneticists had identified a variant of uncertain significance which, it was said, could be linked to a disorder involving fractures from a lesser degree of trauma. As such, fact finding needed to consider medical evidence carefully [9].

Disclosure issues

The week prior to the present hearing, the local authority had served a bundle of family time and foster care records amounting to 1888 pages; the latter had not previously been available save for the first month of the placement. The representatives of the mother and intervenor (her former partner) raised issues from scrutiny of those notes. These included:

(1) B being referred in January 2025 to paediatrics for blood tests due to the “slow healing” of her left forearm fracture

(2) a paediatrician undertaking a full body examination of B in May 2025 and referring her for an eye test to rule out neurofibromatosis and pseudoarthrosis

(3) B being taken in August 2025 to hospital for an x-ray where fractures were reported to have healed but where she would need to attend an ophthalmology appointment in eight months’ time – as such, that B had been subject to further x-rays and investigations during 2025, whilst also being subject to a number of specialist referrals.

Hospital records within the bundle had not been updated beyond B’s discharge from hospital in December 2024, it having not been known by the legal representatives that there were likely to be any. Hospital and GP records were accordingly directed to be provided urgently within a 24-hour timeframe [11]. Whilst no significant concerns had been raised by paediatrics subsequent to this, B had been referred to both ophthalmology and for genetic testing in order to rule out a medical condition, neurofibromatosis, which could potentially be relevant in relation to the issue of increased fracture propensity. Experts had therefore been instructed without key medical records and information that could at least potentially impact upon their conclusions; there were also some gaps in the medical records [15]. While some limited information was available from material previously disclosed, the court was not satisfied that this absolved the local authority which had accepted serious failings [17], notwithstanding that the significance of that information had not been picked up by anyone else in the case [24].

There had been significant delay in the receipt of foster care records which should have been escalated, having not been received on a fortnightly basis [18,20], however, there had been extensive references to the medical investigations in looked after review meetings which again had not been served previously [19]. It was not suggested that the failure to share information had been deliberate [20]; this was a case of an inadequate process of information sharing within the local authority [27]; it appeared that the social worker had not been notified in writing of health appointments [21], at points, the records had not been reviewed legally [24]. The mother had not, despite sharing parental responsibility with the local authority, been kept informed of key medical appointments [26].

The initial health assessment had not been informed by relevant history from the family and professionals, and the assessor did not have access to all medical records [28]; it appeared that a subsequent assessment had been significantly dependent upon information from the foster carer which may not have been entirely accurate [29]. Significant information that was available within the looked after reviews was not, however, communicated to the authority’s legal advisors. Overall, the court was concerned (though importantly without hearing from medical professionals in this regard) as to whether there was an effective channel of communication between the relevant health services and social work professionals.

The court’s findings on information sharing

As the court identified, where the local authority had not informed that a child who was said to have suffered inflicted injuries was being investigated for a further, potentially highly relevant medical condition, this impacted upon the article 6 rights of the parents [27]. As the judgment comments [32] “In a case where an infant has suffered numerous fractures which the local authority asserts are inflicted and where the carers dispute this and medical experts have been instructed in order to consider the presence of any underlying medical conditions of relevance, it is surely a basic expectation that there should be adequate information sharing processes allowing for the legal department within the local authority to become aware of any ongoing medical investigations that are being undertaken in relation to the subject child. In this case, there was a significant failing in terms of information sharing.” While this was not reflective of a broader pattern of systemic failings, and the court accepted a number of steps and procedural changes proposed on behalf of the local authority, it took the opportunity to identify the following points of practice [33]:

(1)  There should be a workable system in place in order for legal services within the local authority to review foster carer logs, family time notes, LAC review meetings minutes and health reviews in relation to children who are the subject of care proceedings on an ongoing, regular basis;

(2)  Foster carer logs, family time notes, LAC review meetings minutes and health review documents should be served upon parties in a timely manner and on an ongoing basis throughout care proceedings;

(3)  There should be a workable and effective system of information sharing in place between the relevant health services and local authority children’s services department;

(4)  Legal professionals must ensure that medical records are fully updated (i) prior to any expert instruction and (ii) prior to any substantive fact-finding or final hearing where threshold issues are to be dealt with.

(5)  Legal professionals should carefully review medical records following their receipt; and

(6)  In relation to looked after children, the local authority must ensure that health information and information relating to and arising from medical appointments is shared with those with parental responsibility in a timely manner.

The Court’s approach towards costs following from this is noteworthy. The local authority was required to pay the cost of the addendum report of each expert. However, in relation to the costs of the first two days of the trial, when evidence was set to commence, the court took a different approach, having regard to the cases of Re T (Children)[2] and Re S (A Child)[3] and the principle approved by Baker LJ in N and A (1996 Hague Convention: Costs)[4] that costs orders should only be made in unusual circumstances, where the conduct of a party has been reprehensible or the party’s stance beyond what is reasonable. It considered what it saw as the council’s suitably measured and appropriate responses at senior level and the inevitable impact of a costs order upon financial resources available for vulnerable families within its area and declined to make an order. There is an interesting contrast here with the approach taken in such other authorities as Re L (Case Management: Wasted Costs)[5] and Kent County Council v A Mother, F, X, Y, Z and IR (Costs in Care Proceedings)[6].

Issues for local authority lawyers

The guidance points are self-explanatory but are a reminder that:

(1)  While contact and foster carer notes or records of social work meetings are sometimes sought as a matter of routine only then to receive little or no use at the final hearing, they may well contain relevant disclosure. It is essential that, where required, they are obtained and properly reviewed both promptly and regularly.

(2)  Such material may not immediately be thought relevant to allegations of non-accidental injury but cannot be assumed as such; it needs to be treated as carefully as any other records or evidence.

(3)  In non-accidental injury cases, all GP and hospital records should be routinely obtained. Proper review is essential. It may contain pointers towards other medical evidence that exists. And it may well require updating prior to a hearing which might be several months after initial disclosure.

(4)  Late applications for medical or health visitor records can be problematic aside from the stress and the challenges to professional working relationships that can arise.

(5)  Other parties may well not press you for disclosure of such material (where there is frequently much else to look at). This will not prevent the matter being raised at court after counsel have been through all the papers. A proactive and suitably inquisitive approach without waiting for the other parties is essential. Where police evidence is concerned, a suitable “professional curiosity” is likewise essential, considering whether everything appears to have been provided and, where necessary, seeking a meeting with the police to review the disclosure and to check for anything else that may be in existence.

(6)  Parents do not lose their parental responsibility when an interim care order is granted; it defers to that of the local authority, but they retain the right, failing an immediate safeguarding concern and where necessary a proper non-disclosure application, to be kept informed of all relevant developments.

(7)  Wasted costs orders are often feared, not as often ordered in practice and are not simply dependent upon an error having been made somewhere. We all make errors; some have greater consequences than others. Where we spot them, early engagement, both with our senior colleagues and, where article 6 and 8 rights are concerned, with the court and the other parties is essential together with a clear indication of how things are to be put right in future. Where evidence from senior management of social services or legal services is concerned, a candid and comprehensive appraisal of what has gone wrong and how it can be addressed may be critical to the court’s view. As the person concerned with the drafting / finalising of such evidence, the lawyer is likely to have a critical role.

Graeme Bentley is a Principal Solicitor in Invicta Law’s Child Protection team, with over 40 years of experience in family law.

[1] Medway Council v MA [2026] EWFC 293

[2] Re T (Children) [2012] UKSC 36

[3] Re S (A Child) [2015] UKSC 20

[4] N and A (1996 Hague Convention: Costs) [2023] EWCA Civ 887

[5] Re L (Case Management: Wasted Costs) [2016] EWFC 8B

[6] Kent County Council v A Mother, F, X, Y, Z and IR (Costs in Care Proceedings) [2011] EWHC 1267 (Fam)