It is very unusual for a judge to make an order in care proceedings requiring a Local Authority to pay the costs incurred by the other parties. It is perhaps even more unusual for a Local Authority to accept that it messed up so badly that such an order against them was inevitable. 

Both happened in the case I am going to explain in this blog post. It’s called E (A Child : Care proceedings: Costs) [2017] EWFC 118 and it was about care proceedings brought by London Borough of Hillingdon (LA) in respect of a little girl referred to as “J”. As you can see from the name of the case, it’s actually from 2017, but the decision has only been published recently which is why I am writing about it now. 

A bit of background

The court was due to make decisions about J’s long-term care at a final hearing in January 2017. The decision was about whether it would be best for her to return home to her parents, be cared for by some family members or be adopted. J’s parents wanted her to be returned to them, but the LA did not agree that this was best.

One of the main issues in dispute was the parents’ substance misuse and whether J’s mother had been continuing to drink alcohol. I won’t be discussing this particular issue in any detail as it is not really relevant for this blog post, but if this is something that particularly interests you then the case is worth a read in full.  Anyway… 

J’s parents complained that the LA had minimised positives with engagement and had a closed mind about the disputed evidence about the mother’s abstinence. This is not an unfamiliar complaint. Often, parents in care proceedings think that the LA have already made up their mind about them and have not given them a fair chance. Sometimes this concern is justified and sometimes it is not. Make sure you make a mental note of the fact that J’s parents had complained about this before you continue reading. 

During the final hearing, it became obvious that there was a big problem with the LA’s final evidence. The LA’s final evidence is usually a final statement completed by the child’s allocated social worker setting out what the LA thinks is the best outcome for the child and why. It is a very important document. It should be signed and dated to confirm that it is true and so everyone who reads it knows when it was written and by who. If there is a disagreement about whether the recommendations in that statement are best for the child, like in this case, then the author of the statement is called to give evidence about their recommendations and the other parties and court can ask them questions. The statement in this case was in the name of the J’s previous social worker. 

The previous social worker was due to give evidence on the third day of the hearing. But, when the time came, the LA’s barrister said that the previous social worker was ‘reluctant’ to give evidence and that an issue had arisen about the extent to which what was written in the statement was actually the previous social worker’s own evidence. Based on things that are said later in the judgment, I assume that the statement had the previous social worker’s name on it but was not signed by her, did not have a statement saying that everything written in it was true and was also not dated. The LA said that they did not want to rely on the previous social worker’s evidence after all and they wanted the newly allocated social worker to give evidence instead about the plan for J. 

But, the next day the LA were represented by someone else (the barrister from the day before had to leave the case due to professional difficulties) and did a U-turn. They said that the final evidence was in fact the evidence from the previous social worker and the LA would be able to establish this and wished to rely on the evidence after all! It seems that at some point the LA called the previous social worker a “hostile witness” (meaning that if they gave evidence it was expected that they would give evidence against the LA’s own case, probably by saying that they did not write parts of the statement being relied on, and so the LA would want to then ask them questions to challenge what they were saying). 

The court then heard some evidence about how the statement had been prepared and sent to the court, but the LA could not explain why their position had changed so drastically overnight. The judge said he was “left with grave concerns about the state of the evidence” and the final hearing had to be adjourned to look at whether there had been any “abuse of procedural fairness” by the LA.  

Procedural fairness

Everyone has the right to have cases like this handled impartially, fairly and within a reasonable time. I am sure that we would all hope that that if there was a risk that our child was going to be permanently removed from our care, we would at least be treated fairly at every stage of that process, whatever the outcome.

As the court was concerned that things might have not be carried out fairly, this raised questions too about the parenting assessment done of the parents. This is a document done by a social worker to look at whether parents are able to parent their child to a “good enough” standard and whether they need any support or further help. The court felt that it was necessary that this assessment was redone by somebody independent. 

There was then an investigation by the court into what had happened. A number of the LA’s employees and former employees were ordered to provide witness statements. There were then not one, not two but TEN court hearings where the court looked into why the hearing in January was not successful. Not only is that a lot of court time that could have been used for other cases, it means a lot of money was taken from the public purse to pay for all the lawyers to work on the case. 

After a number of months, and a lot of encouragement from the court and other parties, the LA prepared something called a “concessions document” setting out all the things that the LA accepted went wrong in J’s case. The LA accepted “collective responsibility” for the failures, meaning that the court did not look into which individual employees were to blame. 

Examples of things that were accepted are: 

  • The LA should not have prepared documents and statements unsigned and undated;
  • The LA should not have prepared statements that did not have a statement of truth;
  • It should have been clearer who the author of documents / parts of documents were;
  • The final evidence had been amended significantly and this was beyond the normal quality assurance process. The amendments included removing some positive evidence about the parents. The version that was sent to the court and the parties was substantially different to the version drafted by the social worker, who did not see or sign the changed statement before it was filed;
  • The LA took insufficient steps to rectify these errors;
  • The LA had wrongly told the court that the statement was the social worker’s statement, that she had approved it and that it was able to evidence that; and
  • The LA was wrong to seek to rely on the social worker’s evidence given the difficulties with the revision of the statement accepted already. 

The one in bold is the one that shocked me the most. Now is the time to recall the mental note you took earlier…

The parents had said that they were worried that the LA had minimised the positives. What the LA had actually done was even worse. It seems that an unidentified person/s in the LA had actively taken steps to remove the positives from the previous social worker’s statement and substantially changed that statement but the statement was still sent out, in the name of the previous social worker leading the court and the parties to think, reasonably, that it was the previous social worker’s evidence and the previous social was not told about any of this until they turned up at court to give evidence on “their” statement. 

What did the court do about it?

The LA’s concessions raised concerns about the LA’s other cases too; what if this was a wider problem in the LA and has happened / was happening / might happen to other families? The court called in an independent, leading barrister to look into what went wrong in J’s case and whether there were wider implications in other cases involving the LA and to make recommendations for good practice in the future. That report concluded that there was “procedural irregularity” in the case, but the judgment unfortunately does not really give us any more information or detail about this. 

What had happened was so bad, though, that the LA accepted it had “behaved unreasonably”. This is important because this phrase represents the high threshold that has to be met before the court will order a LA to pay the costs incurred by the other parties. The LA had actually offered the mother, the father and J £20,000 each to go towards their costs!

The Judge found that the LA’s actions had caused months of delay until a final order was made and had taken up a large amount of the court’s and advocates’ time. He decided that the LA should pay the costs incurred by the parties after appropriate period of time that the costs order should cover was 26 October 2016 (the date that the statement was prepared) to the date of the decision on 17 October 2017 (but the any costs incurred because of the legal argument about the alcohol test results should be excluded from this). He made an order that if the costs were not agreed, they would be assessed summarily by the court. This means that if the parties did not agree the amount of costs between them, the case would come back before a Judge to work out how much should be paid. The Judge will look at whether the costs have been reasonably incurred, are reasonable in amount have been proportionately incurred in light of the issues. The parties seeking costs have to fill out a form setting out each piece of work done on the case, who completed the work, how long it took and how much it cost (usually solicitors have an hourly rate). Also, it sets out other costs that have been incurred, such as barrister’s fees and court fees. All parties are given an opportunity to make representations to the Judge about which costs should or should not be allowed and why before the Judge makes a final decision. 

Clearly, what is set out above makes for some very troubling reading about how the LA operated. That statement was a key piece of evidence being relied on by the LA in support of their case that J should not return to her parents’ care. That statement could have had life-long consequences for J and her family. 

In an attempt to finish on a happier note, I want to tell you about the two positives to be taken from what happened.  

During the time that passed since the failed January hearing, J’s parents completed various pieces of work to alleviate concerns raised by the LA and provided negative test results for all illicit substances. The independent report recommended that J return home to her parents. This was agreed by all parties and happily, J returned to her parents’ care in late July. 

The LA told the court in a ‘concessions document’ on 24 May 2017, that it had taken proactive steps to ensure that the errors made in J’s case would not be repeated in the future. We know that an independent review followed which made recommendations to the LA in a report dated 23 July 2017, though the judgment does not tell us what those recommendations were. When the case came before the court on 5 September 2017, the LA’s barrister said that the LA accepted the conclusions and recommendations of that report. He also confirmed that the LA had fully implemented all the proactive steps set out in the concessions document and introduced a new structure to improve its working environment because three of its former employees had raised concerns when interviewed as part of the independent review, that the LA was an unusually difficult place to work. Importantly, the role of “care proceedings case manager” was clarified within the LA to make it clear that it did not include responsibility for making any substantive changes to the LA’s evidence (which perhaps suggests it was the care proceedings case manager who had changed the previous social worker’s statement). The LA also arranged for court and witness training for its employees with independent counsel. 

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Image: Alex E Promios from Wikimedia Commons