Local Government Lawyer Insight December 2018 LocalGovernmentLawyer 20 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)  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  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 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.