Family Division judge hits out at "breathtaking incompetence" of council, failures on disclosure to court

A judge has accused a borough council of “breathtaking incompetence”, and severely criticised a social worker, in a case where a boy was left in a “thoroughly corrosive” foster placement for nine months longer than he should have been.

Mr Justice Newton, sitting in the Family Division of the High Court, made these remarks in the fourth set of proceedings concerning 14-year-old child J. The council said it was undertaking an independent review in response to the ruling.

In Bedford Borough Council v CD & Ors (Rev 1) [2020] EWHC 3298 (Fam) the judge said that although J’s mother CD was acquitted of the murder of his half-sister H, the local authority, social worker and foster carers had assumed the mother was still guilty and impeded J’s return to her.

In June 2018 eight-weeks old H was found dead in her cradle and subsequent enquiries revealed extensive multiple injuries.

CD and the baby’s father E - who is not K’s father - were arrested on suspicion of murder and care proceedings were taken for J.

At trial CD was formally acquitted - which Newton J noted was “an aspect with which the local authority evidently struggled” and E was convicted and sentenced to life imprisonment.

The judge said E had been jailed for nine years in an earlier case of violence against children.

“An important aspect which requires public scrutiny is how a man like E with a clear history of serious violence towards children can disappear off the radar and offend again,” he said.

“An important and central question arose as to the mother's knowledge of E's past, whilst the mother had spoken about his previous incarceration, she claimed not to have known the detail (as E to the contrary claimed).”

He said the council persisted in its view of the mother and “in common with the local authority, J's foster carers as early as July 2018, held very strong views about the mother; in particular that she had known the detail, or some of the detail of E's past”.

Once it became known the mother would be acquitted “they were frustrated, angry, and disappointed and considered that the mother ‘had got away with it’”.

The foster carers also declined to take J long term. This stance was known to the social worker concerned but not disclosed to J, the parties or court until much later.

“It is the first instance of many where vital information was not disclosed,” Newton J said.

“Had it been, the troubling and inexplicable expressions by J, the conundrum which the court faced in January 2020 concerning J's expressions, might more readily have been understood and resolved.”

Newton J said he would not name the social worker as “whilst I consider her management of J's case has spectacularly fallen well below the standard that is acceptable, I do not know however, the level, quality or content of her supervision, as presumably existed, having not heard evidence about it”.

He said her case management had been “at best passive”, and there had been “almost complete lack of openness in particular with the court“.

Ultimate responsibility lay with the local authority, “resulting, I am clear, in J remaining in foster care, in fact in a thoroughly corrosive environment for nine months longer than should have been the case. He should have been restored to the care of his family at least nine months previously,” the judge said.

At the root of the serious failings which had occurred in the case was “the mindset of the local authority”.

Even allowing for pressures on the social worker, “I was struck by how little she had applied herself to this case or given herself an opportunity to even properly read the case files”.

He added: “Quite simply she was not on top of the case and was not therefore in any position to think anything through, let along give it a proper analysis.”

The foster carers’ unwillingness to take J long term “could not have been made clearer.

“To suggest that what she was being told by them was somehow an emotional blip, an exceptional reaction (not worthy of disclosure) illustrates how little grip she had on the case.”

The judge found it “even more troubling”, that the council did not challenge the foster carers and “I have concluded reluctantly that the only explanation for that was indeed because…the local authority shared the foster carers' views”.

Bedford had also abrogated its responsibility by getting the foster carers to inform J of his mother's acquittal.

The social worker submitted to the court at an earlier hearing a “really extraordinary 78-page statement” which reiterated her belief that the mother knew of E's true offences.

“The social worker attempted to meet questions about those aspects by suggesting that they somehow related to J's wishes and feelings,” the judge said. “It was with respect, an explanation which beggars belief.

“In fact, what it disclosed was a total failure of judgment and understanding, a superficial approach founded on the clear, and misguided, mindset of the local authority.”

Newton J said the impact of all this on J had been “devastating” and the social worker’s positive view of the foster carers “was clearly a far cry from the reality of the situation”.

This meant that the council’s “wholly negative biased view of the mother” was clearly conveyed to J.

J said he wanted to live with his mother but the social worker did not properly consider what she heard and in evidence “sought to explain what had occurred based on some hitherto undiscovered fear of the mother based on J's experience of living with her, not just in terms of her advices to the court, but more damagingly and completely misconceived to J himself”.

There was “a systematic pattern of essentially selecting facts to suit the preferred hypothesis and ignoring or rejecting anything that might challenge it”.

Newton J said the results of the council’s actions were that the court and the parties were misled into understanding that the foster carers were a viable - even preferred - option as long-term carers for J; and J was deliberately misled into believing this too.

“That inexplicable and ultimately dishonest stance with J in respect of the foster carers was compounded by failing to tell him…that his mother was to be acquitted”, the judge said, noting the social worker “actively misled J…when she withheld crucial information from him and compounded by then relaying [his resulting] wishes and feelings to the court as genuine”.

The judge said it was “inexplicable” that crucial information was kept from the court.

“The local authority, fully aware of the foster carers' trenchant views about the mother, decided not to disclose them,” he said.

He added: “It is apparent from the foster care records that both arms of the local authority very clearly knew of the shocking and unsuitable environment that J had been living in and not only failed to disclose it, but somehow chose to ignore it.”

Despite the council having earlier told the court that it would look at areas for learning”, the judge said: “What has occurred since does not persuade me that the authorit has yet faced up to its culpable role in the case, not just of omission, but deliberate and misconceived decision making”.

Bedford’s failure to make timely disclosures to the court “at best it demonstrates a total lack of judgment or professionalism”, Newton J said.

He concluded: “It is wholly inadequate to say that the local authority had become over reliant on J's expressed views and was not curious enough about discrepancies when his views changed; with the background I have recorded, that simply will not do. There has here I am afraid been breath taking incompetence (with or without bad faith), unassailed by any management structure, resulting in greatly prolonged proceedings and a boy remaining away from his home for at least nine months longer than should have occurred.”

A Bedford Borough Council spokesperson said: “The Council takes the judge's wording seriously. The needs of children are always the priority. An independent review is being undertaken and the learning from this will be used to address any practice issues.”

Mark Smulian

Image: Simon Speed, Public domain, via Wikimedia Commons