Shoesmith granted leave to appeal in JR against Haringey and Secretary of State

Sharon Shoesmith has today been given permission to appeal in her judicial review action against the London Borough of Haringey and the then Secretary of State for Children, Schools and Families.

High Court judge Mr Justice Foskett had rejected the claims brought by the former director of children’s services in a judgement issued in April this year.

He ruled that the decision by the Secretary of State, Ed Balls, to replace her following a report by Ofsted into Haringey’s children’s services department could not be impugned on the grounds of fairness.

Granting leave to appeal this week, Mr Justice Foskett said: “For reasons which will be clear from [my original] judgement, I consider that the legal relationship between the Secretary of State (who has the statutory power to intervene in a local authority’s affairs pursuant to section 497) and the local authority as the employer of someone who can effectively be removed from his or her employment, is an extremely difficult area.

“There seems to be no very clear direct authority on how the role of each is carried out in the kind of circumstances that prevailed in this case and which could prevail in other situations….The issue has arisen in this case in the highly important area of the protection of vulnerable children who may be the victims of physical abuse, but it could easily arise in other circumstances too.”

The judge said there was a wider public interest than merely the interest arising from the circumstances of the case for a considered judgement from the Court of Appeal to provide “an authoritative focus”.

Mr Justice Foskett highlighted his conclusion that a lower threshold of fairness to an individual in Shoesmith’s position was justified than would normally be required because of the context in which the Secretary of State’s decision under section 497 was made.

He went on: “Whilst I believe I am right in this conclusion, it would be quite wrong for me to take the view that there is not a perfectly respectable argument that the threshold should have been higher than that which I regarded as appropriate. It is a matter upon which views may reasonably differ and I consider that it is by no means fanciful that the Court of Appeal may differ from my view.”

The judge had also in his April 2010 judgement rejected Shoesmith’s judicial review action against Haringey over its actions in dismissing her from her employment, holding that the place where her grievances against the council should be ventilated was the Employment Tribunal.

In this week’s ruling, Mr Justice Foskett said that the issue between Shoesmith and Haringey was “very much a legal issue and depends on the interpretation and application of well-established authorities in the particular context of the position of a director of children’s services”. He added that this was also an area where views on the legal conclusions to be drawn could differ, and that the test for granting permission appeal was therefore met.

However, the judge refused Shoesmith permission to appeal in her case against Ofsted. He said there was no realistic prospect of successfully appealing his conclusions, which were essentially factual conclusions that the Ofsted inspectors were “merely performing what they were set to do by the Secretary of State , within the time limits imposed, and that the process adopted involved sufficient opportunity for those, such as the claimant, who may be affected by the outcome, to put forward their views”.

Shoesmith will therefore have to seek the permission of the Court of Appeal if she is to be allowed to appeal the Ofsted case.

Mr Justice Foskett also ruled on the costs of the case so far, awarding the Secretary of State just £25,000 including VAT when £138,000 was claimed. He said it would be "grossly unfair" for the Secretary of State to benefit from the overall judgement against a private individual who was not fully supported financially by her professional organisation.

The judge added that he could not ignore the fact that comments made by Ed Balls at a press conference and his effective encouragement of the council to dismiss her without compensation "contributed to the impetus for this litigation".

Mr Justice Foskett ordered Haringey to pay Shoesmith £10,000, rejecting the council's argument that it should be paid £88,000 in costs by the claimant because their was no public element to her claim against it. The judge said there was a public element to the case, but that he had found that the Employment Tribunal should have been considered the "first port of call".

"If one has to talk in terms of 'wins' or 'losses', the claimant 'won' on this issue and Haringey 'lost'," he said, adding that he was not satisfied that the procedures adopted by Haringey gave the appearance of fairness.

The judge declined to make an order for costs between Shoesmith and Ofsted, rejecting the agency's claim for £115,000 and the claimant's call to be paid £50,000. He said this was a "paradigm case" for a judge to deprive a party of costs that it might otherwise be entitled to receive because of its conduct of the case – Ofsted had "signally not honoured" its obligation of candour after disclosing a large amount of documentation at the 11th hour before the original hearing.

In a statement Shoesmith’s solicitors Beachcroft generally welcomed Mr Justice Foskett's latest ruling. The law firm said: “We note that the judge has only made a limited order for costs in favour of the Secretary of State. We are pleased that the judge has made a substantial order for costs against Ofsted and in favour of our client and has also made an order for costs in favour of our client against Haringey Council, the judge declaring that our client ‘won’ and that Haringey ‘lost’ on the issue of fairness."

Beachcroft added that it was also pleased that the judge granted Shoesmith permission to appeal against Haringey and the Secretary of State. “We are considering with our client whether to ask the Court of Appeal to grant permission to appeal the judge's decisions in respect of Ofsted,” the firm said.

A spokesman for Haringey said it was carefully considering the judgement and then would decide whether or not to appeal the costs order.

He said: "The council believes it acted properly throughout the process and stands by everything it has done. It also continues to believe the appropriate place to hear this case is the Employment Tribunal.

"Our focus has always been about addressing the serious problems that arose in our child protection service. We got on quickly with our partner agencies to do just that and continue working towards making our children's safeguarding services among the best there are.”

An Ofsted spokeswoman said: “It is not unusual in cases concerning a matter of strong public interest for costs to be agreed in this way.”