High Court judge questions whether children’s services at council are fit for purpose after identifying “egregious and longstanding failures” in case over eight years period

Herefordshire Council is to hold an extraordinary meeting this month “to agree swift and decisive action” to improve its Children’s Services after a High Court judge concluded in a scathing judgment that the local authority had “utterly failed” children who were the subject of public law proceedings.

The local authority’s acting chief executive and head of paid service, Claire Ward, also acknowledged that the judgment had identified incorrect legal advice being given to management. “This advice was plainly wrong and there have been significant changes made to the management and staff within the Children’s Legal Team to ensure processes are observed and advice is sound,” she said.

The case of YY (Children: Conduct of the Local Authority) [2021] EWHC 749 (Fam) concerned three young people, Child A who is 17 years old, Child B, who is 13 years old, and Child D, who is 11 years old. They had a sister, Child C, who died on 6th June 2019 when she was 14 years of age.

The children were placed with local authority foster carers in July 2012. They moved to live with alternate foster carers, Mr XX and Mrs XX, that September and have remained there to date. All four children were made the subject of care orders in January 2014.

Early in their placement with Mr XX and Mrs XX, the children made serious allegations of sexual abuse against their mother, their father and others within, and associated with, their extended family.

In a judgment of 26th July 2013 HHJ Rundell did not find the children's allegations established on the balance of probabilities, but he did find that the children had been exposed to sexual activity when they had been living with their parents.

There were three substantive applications before Mr Justice Keehan:

i) the mother's application to spend time with the children (contact) dated 23 September 2019;

ii) the local authority's application to discharge the care orders - on the basis that the court would be invited to make special guardianship orders in favour of Mr and Mrs XX - dated 8 November 2019; and

iii) the local authority's application to change the children's surnames from YY to XX dated 3 December 2019 - by consent the judge granted this application in respect of Child A alone on 20 August 2020.

In an agreed summary of conceded issues, given in response to the schedule of findings sought by the mother, Herefordshire accepted amongst other things that:

• It failed to use HHJ Rundell’s fact-finding judgment as a basis for challenging and changing the children’s distorted perceptions of their family.
• A script drawn up to inform the children about that judgment did not make it clear that the mother had not sexually abused the children and it should have done so.
• It failed to promote contact between the children and their mother over significant periods of time.
• It should have made an application pursuant to section 34(4) of the Children Act 1989 for permission to refuse contact at least at the point at which the children declined to receive the indirect contact from their mother in October 2014 until the indirect contact was re-established in March 2017, and therefore between October 2014 and March 2017 acted in breach of its duty under section 34(1) to allow reasonable contact between the children and their mother.
• It failed to use life story work and therapy effectively to dispel the children’s misconceptions about their birth family.
• It did not properly engage the mother within the Looked After Child(ren) process at all times.
• It failed to manage the foster placement properly and to ensure that the children’s emotional needs were met.
• It failed to take any sufficient steps to preserve the children's sense of identity with and connection to their family.
• Whilst C was hospitalised the council marginalised the mother and failed to accord her parental responsibility the weight and respect it deserved.
• It gave consent to certain medical procedures for C without any discussion with the mother or any application to the court for a best interests decision including heart surgery if the medical team felt C would die without it.
• Despite being aware of the gravity of C's situation and clarifying with the hospital on the 29th May 2019 of the need for them to be informed if the hospital were intending to remove C from life support, the council did not discuss this possibility with the mother.
• The failure to consult with the mother in advance about the possibility of a rapid deterioration in C's condition had contributed to the mother not being able to say goodbye to her daughter before she died. “The need to plan goodbye visits was first mooted on 29 May 2019. Ultimately Child C's life support was withdrawn before her mother reached the hospital. This could and should have been avoided.”
• Important documents were not always provided to the foster carers at an appropriate time, promptly or sufficiently in advance for them to consider, understand and assimilate the contents without feeling rushed or under pressure.
• The number of different social workers for the children over the period of their placement would have added to communication difficulties, lead to a feeling that the children and carers were having to repeat information and further increased the risk of important information being overlooked. It would also inevitably have led to the need for the foster carers and children to rebuild fresh relationships with professionals.

The incorrect legal advice was given when C’s condition significantly deteriorated in June 2019 and the hospital planned to withdraw her life support. During a phone call with the Team Manager (Looked After Children) the mother said she wanted what was best for C and that she wanted to come and say goodbye to her daughter.

Shortly after one of the council’s solicitors said that it was “agreed birth parents need to be informed about the medical advice. We need to consult with them but my legal advice is our duty as corporate parents is to accept the medical advice and avoid unnecessary suffering. If this is contrary to the parents wishes it is unfortunate but we need to take that course.”

That legal advice was wrong, Mr Justice Keehan said.

C died immediately after the life support machine was switched off. Shortly after the mother arrived at the hospital.

The judge said that in C’s case “the profound life and death decision to consent to the withdrawal of life support ought to have been the subject of an application to the High Court either by BCH [the hospital] or by the local authority. It was wrong and an inappropriate use of its powers under s.33 of the 1989 Act for the local authority to have exercised its powers to consent to the withdrawal of Child C's life support.”

Herefordshire accepted that given:

i) neither parent had had any contact with any of the children, including C, since late 2012;

ii) neither had been involved in any meeting or discussion with treating clinicians at BCH; and

iii) the circumstances in which they were told of the parlous state of their daughter on early morning of 6 June;

Mr Justice Keehan could not accept or find that either parent had given informed consent to the withdrawal of C’s life support.

In June 2019 Herefordshire did not have a policy or protocol for the actions to be taken in response to a child requiring serious medical treatment or requiring the withdrawal of life sustaining treatment and the giving or obtaining of consent for the same. There is now a policy in place which is compliant with the guidance given in the case of Re C (Children) [2016] EWCA 374.

The judge meanwhile described the disclosure of relevant documents and records in the case as "truly lamentable".

He said: "We lost the first 8 days of this fixture because vast volumes of documents were being disclosed by the local authority. The Supplemental Bundle eventually comprised over 2,000 pages of material and the fostering records bundle contained in excess of 700 pages of documents."

The judge said that it was a testament to the expertise and professionalism of leading and junior counsel for all parties and their solicitors that, notwithstanding the lost days at the hearing, all necessary witnesses were heard and closing submissions completed within the 20-day fixture.

He added: "It is no fault of Ms Meyer QC [counsel for Herefordshire] that at the conclusion of this hearing I still do not have a complete understanding of why there was such a spectacular failure in the disclosure of relevant documents prior to the commencement of this hearing. I note this local authority had no policy relating to the disclosure into public law proceedings or, indeed, any legal proceedings. This must be remedied without delay and will no doubt be one of the subjects for the internal and external reviews, which are to be established by Herefordshire Council, to consider."

In his overall observations, Mr Justice Keehan said: “The children have been utterly failed by this local authority. By its actions, failures and omissions over the course of the last eight years it has compounded the emotional and psychological harm the children have suffered.

“The local authority has ignored, indeed, challenged the advice of a hugely experienced child psychiatrist for reasons which I do not begin to understand. It has treated with contempt the clarion call of a senior family judge for the local authority to re-evaluate its approach to these children, to the family and to the carers.”

He added: “I can only hope there is now the time and the opportunity to repair this damage and to give the children a positive sense of their identity, of their family and to enable them to have meaningful, positive and beneficial contact with their mother and their wider family.”

The judge said the mother had accepted her past failings in her care of the children compounded by her own experience of mental ill-health. However, he added that “these matters do not begin to explain or excuse the local authority's wholesale failure to include the mother in the lives of or in the decision-making processes for her children. She was completely and exclusively side-lined by the local authority from the lives of her children. This was tragically but graphically illustrated by the events which preceded the death of Child C."

Mr Justice Keehan said: “I very much hope that, notwithstanding past failures, matters can now be progressed to a stage where the mother can play a meaningful role in the lives of her children. Despite the way in which she has been so badly treated by the local authority it is hugely impressive that the mother remains focused on the welfare best interests of her children. She was able to consent to the children changing their names to XX, she did not ask to disrupt the placement with the interveners, and she did not seek to pursue her application for contact. These are graphic demonstrations of her love for her children and of her desire to put their welfare best interests to the fore.”

The judge said that the interveners (the foster carers, and prospective special guardians), had, “albeit at a later stage”, also accepted and admitted their past failings and errors. 

These failings and errors had to be set out in proper context, he added, as counsel for the interveners was keen to stress. “They were new and relatively inexperienced foster carers. They took on the care of four young and challenging children. They gave them a loving, secure and stable home. They made them feel a part of a warm and caring family unit. They were not advised by the local authority that the children's adoption of their surname is contrary to s.33(7) of the 1989 Act nor that the children calling them 'mum' and 'dad' was wholly contrary to good social work and fostering practice. I accept that they took these steps out of the best of motives. I accept that they saw themselves as champions of defending the children's expressed wishes and feelings but in doing so they in fact compounded the harm the children were suffering and would suffer from being alienated from their parents and their wider family.”

Mr Justice Keehan said his strongest criticism must be directed at this local authority. “In the whole of my professional life I have rarely encountered such egregious and long-standing failures by a local authority. The worst of it is, I cannot after the closest possible enquiry, understand why or what motivated the local authority to fail these children, this mother and the interveners as appallingly and for as extended a period of time. The whole history of the role of this local authority in the lives of these children is highly inexplicable. The only matter which is clear to me is that it did not have the welfare best interests of the children at the heart of its decision-making, such as it was.”

This must call into question whether Herefordshire’s children's services department was fit for purpose, he added. “That is a question which is not for me to answer. I can say that they had failed these children in an extraordinary manner over a prolonged period of time.”

The judge made the findings of fact agreed by the parties and those findings of fact which he found proved having heard evidence from a number of local authority witnesses.

The local authority's application for permission to withdraw the applications for the discharge of the care orders and for the discharge of the care orders were adjourned. These applications will be reconsidered by the court when Dr Williams, a psychologist, has filed his reports and has commenced therapy with the children.

Mr Justice Keehan made no order on the mother's application for contact with the children.

With the consent of all parties the judge also gave permission for Child B's and Child D's surnames to be changed from YY to XX. He had previously given permission for Child A surname to be changed to XX. “I am told the children were delighted by this news and were pleased to be told that these orders have been made with the consent of their mother.”

Mr Justice Keehan continued: “The local authority's actions, omissions and failures in this case have been spread over a period in excess of eight years. Mr Baird [Director of Children’s Services] readily accepted and described the conduct of the children's services department in the lives of these children as appalling. He was plainly right to do so. He offered to write a personal letter of apology to Child A, Child B, Child D, the mother and the interveners and will ensure this course has been taken.”

In a statement, the Leader of Herefordshire Council, Cllr David Hitchiner said he was “deeply disturbed and saddened” by the judgment. He apologised on behalf of the council “to the family affected by the appalling failings identified by Mr Justice Keehan”.

The Leader said this latest judgment showed the previous steps taken to make improvements in Children’s Services had fallen short of what was required to protect and safeguard the children of Herefordshire.

“Cabinet have requested the Monitoring Officer calls an Extraordinary Meeting of Council to agree swift and decisive action to improve these services. We will be working closely with our partner agencies to ensure we do our utmost to protect and safeguard the children of Herefordshire. I would encourage all those with questions to submit them to the meeting, so we can have a full and frank discussion about how we can improve our Children’s Services.”

The Extraordinary Council meeting will take place on 27 April.

Acting Deputy Chief Executive Claire Ward said: “I am upset by this judgment and deeply sorry that we have failed this family. We have neglected the needs of the children and their carers and deprived the parents of their rights. I am saddened that our actions deprived a Mother of her right to say goodbye to her child and my deepest sympathies are with the family on their loss. We will provide the family with any required support and care to rebuild relationships and to help repair some of the damage we have done.”

Ms Ward said she had taken immediate action to address the serious issues highlighted by the judgment. “There is a clear need for an urgent and thorough external review of Herefordshire Children’s Social Care Services. The attitudes, culture and professional practice demonstrated in this judgment is shocking and well below the standards we expect. Appropriate action will be taken on the conclusion of our investigations, in accordance with the council’s HR procedures, any relevant professional body requirements, and the law. It is evident that our previous commitments to improve our social care services for children have fallen sadly short of the standards expected and we have failed to provide the expected and appropriate support to this family. This is indefensible.”

She added that the incoming Chief Executive, Paul Walker, had been working closely with the senior management team to ensure the council makes “real and sustainable changes” to its Children’s Social Care services. Cath Knowles has been appointed as Interim Director of Children’s Services.

“Our social workers continue to do their best, often in very difficult circumstances, to support families and protect vulnerable children in our community. We will ensure our staff have the support they need and the confidence and commitment to report any concerns as we make significant and lasting improvements to Herefordshire Children’s Services,” Ms Ward said.

She added that the council had notified Ofsted and would be working closely with regulators and partner agencies to ensure it protects and safeguards the children of Herefordshire. "We have added further reassurance measures within Children’s Services to ensure appropriate checks are undertaken for decisions relating to children in our care."

On the issue of incorrect legal advice being given to management, Ms Ward said: "This advice was plainly wrong and there have been significant changes made to the management and staff within the Children’s Legal Team to ensure processes are observed and advice is sound.”

She said she had also requested a Department for Education review of Herefordshire's Children’s Social Care services to assess whether children in care were safe in Herefordshire. “This review took place last week and found no immediate actions were required on the cases they reviewed but clearly further external reviews will be required to make sure our service is fit for purpose.”