Order in Court
Julien Foster examines good practice, bad practice and the pitfalls when it comes to local authorities and public law children proceedings.
Acting for local authorities is so simple, I thought in the days when I acted only for family members. Your client always turns up to court. Being able to say “I’m for the local authority” in the robing room sounds so grand ... and, a bit like prosecuting before magistrates, your case is bound to be cast-iron.
That, as I say, was in the days before I moved to new Chambers whose members acted not only for family members but also for local authorities, and I volunteered enthusiastically to add another area to my practice.
My naïve preconceptions came home to me when I was instructed to represent an authority at a final hearing. I discovered when I got to court that the social worker did not agree with the care plan; it was her manager, she said, who had insisted on it. Yet the manager was not there to give evidence.
How, I wondered, could the social worker possibly be expected to give oral evidence in support of a care plan with which she profoundly disagreed? Matters were resolved in the end through a conversation with a head of service and the case concluded by agreement: but it could all have gone disastrously.
Since I started practising in the area, local authorities have, among other things, had to grapple with the major decisions of the Court of Appeal in Re B-S (Children) [2013] EWCA Civ 1146 and W (a child) v Neath Port Talbot Borough Council [2013] EWCA Civ 1227. I have often found that it is the local authority of all the parties which has to bear the brunt of criticism, whether it be from the court, family members or the children’s guardian. Here are my thoughts about the conduct of litigation by local authorities: good practice, bad practice and the pitfalls…
Compliance with orders
I once heard a team manager say defensively, “It’s not me. It’s [fill in name of borough]”. This followed a series of criticisms about non-compliance with directions from the other parties’ representatives.
All parties to care proceedings should be familiar with the Court of Appeal’s reminder to practitioners of the truism that orders are “not preferences, requests or mere indications” – and local authorities should be particularly mindful of the chilling warning that “an unwilling party who flouts the court’s orders may find itself in contempt, even if it is an agency of the State such as a local authority”.
The problem that local authorities face which other parties do not is simple: directions are made against “the local authority” which, while a singular legal entity, has many officers fulfilling its responsibilities. (There is at least one High Court Judge who would disagree with me that local authorities are “singular”: on draft orders, he always changes references to “is” to “are” and so on.)
While I would prefer directions to be against the individuals who are meant to comply with them, I accept that this is impractical in the case of the authority. What is essential, in my view, is for someone of sufficient seniority within the local authority to delegate the various parts of the order to relevant officers, to monitor the position in good time to ensure that orders will be complied with – and to seek the court’s directions if for any reason there is likely to be non-compliance: beforehand, rather than after the event.
Here is another practical suggestion, which deals with the problem that arises when a local authority is waiting for evidence from another body – even another party to the proceedings who has failed to comply with a direction – and the document the authority is due to file depends on receipt of that other piece of evidence.
Let us suppose, for example, that the local authority is due to complete a statement setting out recommendations in relation to a child’s placement once it has received a medical report. There is nothing to stop completion of the statement, but its author should make it clear that the local authority may seek to supplement the statement upon receipt of the medical report. The author should also reserve the authority’s position in relation to any matters that depend on the contents of the medical report.
The statement’s author should also be careful, if necessary, to provide “either/or” conclusions in much the same way as an expert’s report prepared in advance of the court’s findings on disputed facts. It may be inconvenient to have to prepare two statements rather than one – but better inconvenience than criticism for non-compliance; and, of course, the local authority’s non-compliance may serve to divert attention from the failure by the person due to provide the missing piece of evidence.
Disclosure
The duties underpinning the duty of disclosure on local authorities in public law cases are longstanding and have been comprehensively summarised by Baker J (now Baker LJ) in Kent County Council v A Mother, F and X, X and Z (IR Intervener) [2011] EWHC 402 (Fam) at 153 – 158.
It is worth distilling them further and including a bare summary here because in my experience, they are all too often not followed. The duty in question is one of full and frank disclosure. For the authority, that means a duty to disclose the documents (1) on which the authority relies; (2) which adversely affect its case; (3) which adversely affect another party’s case; (4) which support another party’s case; and (5) which the local authority is required to disclose by relevant practice direction. It also means a duty actively to consider what relevant documents it possesses and whether there is any countervailing argument against disclosure.
The case law makes clear that the task of examining the files should be carried out by someone who has a proper understanding of the legal principles, the issues in the case and the court procedures, such as a litigation lawyer. In other words, it should not simply be left to a social worker.
So much for the duty to disclose the local authority’s own records. As the applicant, the local authority will often be responsible for obtaining and disclosing evidence from third parties, whether medical records, police records, or records from proceedings concerning other children or different local authorities.
The problem is that it is not in the gift of the local authority to state by when a document in the possession of a third party will be disclosed. Yet court orders frequently impose dates on local authorities.
It seems to me that the remedy is greater use of third party disclosure orders – already often used against the police (eg in the case of records) and the Department for Work and Pensions (eg in the case of a missing father) which can be served on the organisation in question. To maximise prospects of obtaining such an order, it would probably assist to consult the organisation in question in relation to a date.
In such circumstances, it is worth bearing in mind that the demands of the court timetable may differ from the standard time organisations lay down for disclosure of their records. Sometimes, it may be necessary to remind organisations such as hospitals courteously that a disclosure order is an order of the court and trumps any standard protocols they may have in place. Sometimes, indeed, it is necessary to remind other departments within local authorities of that simple fact. I recall sitting next to a social worker who was being stonewalled on the telephone by a colleague in the housing department, and I resorted to hissing suitable lines for her to use.
Threshold criteria
At the time when proceedings are issued, local authorities are required to set out the facts upon which they rely in support of the proposition that the threshold criteria within the meaning of section 31 of the Children Act 1989 are met. For obvious reasons, this task is often completed hurriedly.
If the child subject of the proceedings is, in the view of the social worker, at risk of significant harm attributable to the care they are receiving and if the risk of harm demands their immediate removal, there may well be little enough time to draft a flawless threshold document.
But in most cases, the local authority will have the opportunity to redraft the threshold document before the final hearing and many threshold documents reserve that right. Yet all too often, threshold documents and the evidence relied upon in support break the fundamental rules highlighted by the former President, Sir James Munby, in Re A (Application for Care and Placement Orders: Local Authority Failings); sub nom Darlington Borough Council v M, F GM and GD [2016] 1 FLR 1, FD.
First, the local authority which bears the burden of proof, must adduce proper evidence: the term “primary evidence” has increasingly and rightly become part of the vocabulary of family lawyers in a way that it was not when I first began practising in family law.
Secondly, the threshold document should not include allegations such as “he appears to have” done X, or that various people have “stated” or “reported” things. Such wording is to muddle an assertion of fact and the evidence needed to prove it. Thirdly, the local authority is required to demonstrate why the alleged facts, if proven, lead to the conclusion that the child has suffered or is at risk of suffering significant harm of the kind alleged.
Witness statements
Usually, in my experience, witness statements by social workers are drafted by them and, sometimes, checked by a manager within their discipline. It is less usual, I find, for them to be read by the lawyer with conduct of the case before being filed. It is less usual still for the lawyer to take on the burden of drafting the document in the first place by taking instructions from the social worker.
I suspect that this is usually due to pressure of time and resources. Also, it is expected that social workers will have the skill to prepare a balanced report and will know, through experience, the legal principles that apply.
There is, of course, the standard social work evidence template, unattractively known by its acronym, which is clearly intended to ensure that all relevant matters are included. Regrettably, I find that its use leads to much material from previous statements being repeated unnecessarily.
I have occasionally wondered whether if the effort put into filling in all the boxes were devoted instead to thinking carefully about the child’s welfare and a five page document were produced in place of the SWET … but that is heresy. All the templates in the world cannot, in my view, usefully replace the input of a specialist lawyer and the process of repeated redrafting.
There are three other straightforward recommendations I have: (1) the need for the statement to be balanced – or there is bound to be uncomfortable cross-examination; (2) the need for the statement to be signed (so important) and a copy of the signed page put into the bundle; and (3) if the statement is to be served electronically, the need for any tracked changes to be accepted and for tracking to be turned off. (There are embarrassing tales to be told in relation to the third point.)
Assessments
Assessments of family members are integral to social work practice and to care proceedings. And there are so many different types: among others, viability assessments, parenting assessments, connected persons assessments, risk assessments. Even the rather tortured “preliminary viability assessment”, used to minimise the amount of work which is to be done. I suggest that often, far too great emphasis is placed on the label given to the assessment.
For social workers particularly, the type of assessment is of significance because it dictates the precise nature of the work that needs to be done and the information that needs to be gathered – and, often, the multi-paged template to be used. That is not to say that the label cannot be of significance from the perspective of lawyers too. But I have sometimes found myself discussing a requirement for an assessment with a social worker and it has seemed to create more anxiety than I would have expected – probably because I am not the one who is going to be carrying out the work!
Much of the anxiety arises, I suspect, because of the sense in the social worker’s eyes that the work is unnecessary in comparison with other pieces of work – in relation to the same family – which demand attention. Think, for instance, of the urgent life story work that often needs to be done with an emotionally damaged, vulnerable child, which takes careful, patient social work.
I would suggest that social workers should avoid using the mantra “We are not carrying out a parenting assessment” (say in a case where children have previously been recently removed).
Leaving aside the local authority’s duty to provide the court with sufficient material to conduct its welfare and proportionality evaluation, the social worker is, in such cases, giving too narrow a definition of the word assessment.
Better, surely, to say, “I will reassess the parents drawing on the previous assessments and identifying what if anything has changed and evaluating their parenting capability for this child. This will be done through a series of meetings and at least one observation of contact”.
This is surely likely to be more productive than a rather sterile debate about the difference between types of parenting assessment which is, in any event, likely to lead to a more prescriptive approach by the court. Micro-managing by the court is a modern curse; the risk of that can be lessened by producing a carefully crafted plan for assessment.
The plan should consider what, precisely, requires attention in relation to the adult: for instance, is the case about basic parenting or is it about associations with risky adults?
A short final point on assessments of extended family members: based on recent experience, I would suggest that it should be the duty of the legal department and not the social worker to send the completed assessment to the person being assessed, together with the instructions as to how to challenge it.
And given the vagueness that often ensues, with no response having been sent by the extended family member in question but the parent asserting that they DO want to be assessed (one can speculate, possibly unfairly, on family dynamics at play here), far better to rely on something in writing from the family member themselves than on a non-response which can always be blamed on the post, a social worker not returning calls etc etc.
Bundles
Care proceedings end with the final hearing, however many of those there may be, and whether they happen before or long after the twenty six weeks have expired.
Final hearings require the local authority to prepare a court bundle and preliminary documents in accordance with Practice Direction 27A. It would be dull to set out all the requirements and I will confine myself to one important provision which is frequently ignored: only those documents relevant for the hearing and necessary for the court to read or that will be referred to during the hearing should be included in the bundle.
Of course, one does not necessarily know what will arise during a hearing – but I would suggest that many local authorities could prune a great deal of extraneous material without complaint. Electronic bundles are increasingly being used by advocates and I would recommend that complete electronic bundles (not merely an index) be sent to all legal representatives when lodged with the court; such a step will avoid a great deal of preliminary skirmishing, delay and those dreaded words “Your pagination is different from mine”.
I would also set out a plea for the term “core bundle” to be scrapped; so often it gets confused with court bundle. It should be replaced with the term “abridged bundle” or “reduced bundle”.
Conclusion
The various thoughts above may not lead to every case resulting in the outcome desired by the social workers – and that is how it should be – but I hope that they might lessen the angst for those conducting the case and lead to timely outcomes following intelligent consideration of the available evidence and not repeated wasted case management hearings and even adjourned final hearings.
Julien Foster is a barrister at 1GC | Family Law.
www.1gc.com/barristers/profile/julien-foster
This article was first published in the December 2018 edition of Local Government Lawyer Insight, which can be accessed at http://www.localgovernmentlawyer.co.uk/insight Insight is published four times a year and is circulated free-of-charge to all Local Government Lawyer newsletter subscribers (click here to subscribe) in electronic format. A single hard copy is also circulated to all local authority legal departments in England and Wales. Also in this issue: Sands of time Interview: Suki Binjal Time to shine Through the looking glass Look North Spotlight: Child Protection
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