Local authority failings: a way out?

Natalie Cross looks at the lessons to be learned from a ruling where a High Court judge was heavily critical of a local authority in care proceedings.

“Egregious”, “disgraceful”, “lamentable”, words used by Mr Justice Keehan in YY (Children: Conduct of the Local Authority) [2021] EWHC 749 to outline local authority failings. One can picture such evocative terms in tabloid headlines, such was the repeated actions of this local authority.

A full reading of this case is recommended. The applications concerned:

• the mother’s (M) for contact (no order was made)
• discharge of the care orders to be replaced with special guardianship orders to the foster carers (adjourned on the care order application)
• a change in the children’s surnames (granted by consent).

Much of those applications were not the focus of the points to deduce from the judgment. The relevant background was:

1. 2012: Four siblings move to foster carers, with whom they remain.
2. Late 2012: Last direct contact between the children and parents.
3. 2013: Finding of fact. Allegations of sexual abuse made by the children not proven, albeit there was a finding they had been exposed to sexual activity. An expert recommended the children needed therapeutic support.
4. 2014: Care proceedings conclude. Therapy recommended with the children to target the false narrative.
5. 2014: The necessity of that work was repeated.
6. 2016: The necessity of that work was repeated again, only a limited amount having been undertaken.
7. 2016: The children wished to use their carers’ surname. The court expressed concern that the carers had been unable to accept the fact find decision, and queried whether the children needed to move placements in view of their emotional needs.
8. 2019: The fourth sibling became seriously unwell. The local authority authorised life-support withdrawal. That child died before M arrived at hospital.

Key findings about the local authority included:

1. A failure to undertake the recommended work with the children to overcome the false narrative – expert opinion was ignored.
2. A failure to promote the children’s identity needs.
3. Disregard of the court’s observations about the placement – the local authority did nothing.
4. A failure to apply to the High Court for permission to withdraw life support. There was no internal policy on how to deal with issues of this kind.
5. A failure to give due regard to the PR shared with M or to include her in decision-making.
6. An expectation that a social worker conducting an assessment ought to be ‘told’ what recommendation to make by senior management.
7. A failure to provide proper disclosure (2000+ pages only being available after the hearing commenced).
8. Delays in progressing final plans for the children and in changing their surname in accordance with their wishes and feelings.
9. The LA having adopted a mindset which caused the children emotional and psychological harm.

Those representing respondents often find themselves criticising the local authority - I know, I have done it myself! Rare is it that failings are as stark as in this case. It is worth remembering that the shortcomings identified in YY occurred pre-Covid, which has regrettably had a significant impact on the way in which local authorities can exercise statutory functions.

This article could not possibly identify one solution with regard to the required changes, and the writer fears that things may well get worse before they get better. However, an attempt to offer some suggestions as to what may alleviate themes that appear time and time again are:

1. Retain social worker continuity, where possible – frequent changes can be unsettling for children and families.
2. Request judicial continuity – points get missed, not least because that Judge is usually only fire-fighting what become the pertinent issues on the day of the hearing.
3. Get a policy! - Re C (Children) [2016] EWCA 374 requires local authorities to have a policy for actions to be taken in response to a child requiring serious medical treatment/withdrawal of life sustaining treatment.
4. Oversight of the social work team from legal and management - not only is this relevant to determining disclosure (which should be left to legal), but is also relevant to ensuring correct (and legal) decisions are made for children. For management, quality assurance needs to be undertaken and expectations on social worker’s need to be fair (they should not be asked to make recommendations contrary to personal opinion).
5. Don’t ignore experts - if the court has endorsed them as necessary, they will likely have something useful to say!
6. Remember welfare - it is trite to say that the child’s welfare is paramount. Their identity and needs must be protected and preserved.

Natalie Cross is a barrister at St Ives Chambers.