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	England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Metropolitan Borough Council v JJ & Anor [2003] EWHC 976 (Fam) (09 May 2003) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2003/976.html Cite as: [2003] EWHC 976 (Fam)

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IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
SITTING AT THE EMPLOYMENT APPEAL TRIBUNAL

		Audit House, 58 Victoria Embankment, London EC4Y ODS
		9 May 2003

Mr Justice Wall:

Introduction

1. This apparently simple case raises issues about the rights and duties of children's guardians in care proceedings under Part IV of the Children Act 1989 (CA 1989), with particular reference to the guardian's right to examine and take copies of local authority documentation under CA 1989 section 42. It also raises the question of the duty of local authorities to impart information relating to the child in question to the child's parents, the guardian and the court. It is, I think, both surprising and disappointing that more than 11 years after the implementation of CA 1989 such issues require a judicial decision.

The Statutory Framework

2. The application before me is by the guardian for disclosure of documentation pursuant to section 42. The guardian says he is entitled to see documentation in the local authority's files relating to the child whom he represents: the local authority disagrees.
3. Before identifying the documentation in dispute, I need to set out the terms of CA 1989 section 42. Its terminology has, of course, been amended to accommodate the creation of the Children and Families Court Advisory and Support Service (CAFCASS) by the Criminal Justice and Court Services Act 2000. However, its substance has been left unaltered. The section is headed: Rights of officer of the Service to have access to local authority records The text reads:

(1) Where an officer of the Service has been appointed under section 41 he shall have the right at all reasonable times to examine and take copies of –

(a) any records of, or held by, a local authority or an authorised person which were compiled in connection with the making, or proposed making, by any person of any application under this Act with respect to the child concerned;

(b) any records of, or held by, a local authority which were compiled in connection with any functions which are social services functions within the meaning of the Local Authority Social Services Act 1970, so far as those records relate to the child; or

(c) any records of, or held by, an authorised person which were compiled in connection with the activities of that person, so far as those records relate to the child

(2) Where an officer of the Service takes a copy of any record which he is entitled t o examine under this section, that copy or any part of it shall be admissible as evidence of any matter referred to in any –

(a) report which he makes to the court in the proceedings in question; or

(b) evidence which he gives in those proceedings.

(3) Subsection (2) has effect regardless of any enactment or rule of law

which would otherwise prevent the record in question being admissible (my emphasis)

4. Pursuant to CA 1989 section 41(2)(b) the children's guardian is "under a duty to safeguard the interests of the child" in the manner prescribed by the Family Proceedings Rules 1991 (FPR 1991). The relevant rules are FPR 1991 rules 4.11 and 4.11A. It is not necessary for the purposes of this judgment for me to set them out. I note in passing only that under FPR 4.11(1) the children's guardian is under a duty to apply the welfare checklist in CA 1989 section 1(3) as if the words "officer of the Service (CAFCASS) were substituted for the word "court".

The facts of the case

5. On one level, this case could not be simpler. The child, whom I will identify as S, was born on 11 October 2001. His parents had a casual relationship which terminated shortly after he was conceived. His mother (Ms. J) rapidly proved incapable of caring for him, with the result that he was, with her agreement, accommodated by the local authority on 5 November 2001. He was then less than four weeks old. The local authority placed him with approved foster parents, Mr. and Mrs. B, where he remained until 16 October 2002.
6. For reasons I have not investigated, the local authority did not institute care proceedings until 25 September 2002. On 17 October 2002 the family proceedings court made an interim care order and re-listed the matter for 14 November 2002. On 14 November 2002 it directed the local authority to file an application to free S for adoption by 9 December 2002 and re-listed the case for 11 December 2002. Following the transfer of the proceedings to the county court on 5 March 2003 a district judge has directed that the final hearing take place on 20 June 2003 with a time estimate of one half day.
7. In December 2002, Mr. M, who asserted that he was the father of S, made contact with the local authority, wishing to be considered as a carer for S. On 7 February 2003, Mr. M issued an application to be joined as a party to the care proceedings. On 19 February 2003 that application came before the justices, who rejected it. They appear to have done so principally on the ground that Mr. M's intervention would delay the completion of the care proceedings, then, of course, still pending in the family proceedings court.
8. Mr. M appealed that decision, and the appeal came before me on 15 April 2003. Mr. M was represented by counsel, but did not appear in person. After an adjournment to enable him to attend and for enquiries to be made as to the time-scale for DNA testing to confirm or disprove that he was the father of S, he still did not attend, and on 16 April 2003 his counsel felt unable to continue with the appeal, which I then dismissed. Ironically, had Mr. M attended, and had it been possible to arrange a DNA test in time for the hearing fixed for 20 June 2003, it is likely that both the local authority and the guardian would have withdrawn their opposition to the appeal, consequent upon the guidelines laid down by Holman J in Re B (Care Proceedings: Notification of Father without parental responsibility) [1999] 2 FLR 408.
9. As described so far, the case would appear to be simplicity itself, and there would appear to be no basis upon which it could properly be taken outside the jurisdiction of the family proceedings court. S's mother appears incapable of caring for him. His putative father demonstrated a rapidly extinguished flicker of interest in him. Subject to any family member proving capable of caring for him, a care order, freeing for adoption and then adoption would seem the inevitable outcome.

Why is this case in the High Court?

10. What has brought this case to the High Court is a quite extraordinary and extremely worrying sequence of events, which I must recount in a little detail, because what happened is closely linked to the disclosure issue. The sequence begins in the early hours of the morning of 16 October 2002, when the police visited the home of S's foster parents and arrested the foster father in connection with their enquiries into what has become known as operation ORE, a national (indeed international) investigation into child pornography.
11. On the same day, and as a consequence of the police action, the local authority held a strategy meeting which is described as being in relation to Mr and Mrs. B. The meeting was chaired by Ms JH, a senior manager, and child protection co-ordinator of children's services for the local authority. Also present, amongst others, were police representatives and a number of social workers, including S's social worker Ms. C. The meeting was told that children's services had been contacted when Mr and Mrs. B had been identified by the police as local authority foster parents, and that as a result of that contact the two children being fostered by Mr. and Mrs. B, one of whom was S, had been removed. Mr. and Mrs. B had been foster carers for the local authority for 33 years, and there had been no complaint of any kind about them. They had, however, been suspended as foster parents as a result of Mr. B's arrest.
12. The police had requested that the children should be medically examined. There was a discussion about the appropriateness of a medical examination. As S was accommodated by the local authority it was agreed that Ms J needed to be contacted and given information about the medical. Rather curiously, the minutes record that "it was agreed that the medical should be a welfare medical as opposed to an intimate medical and skin swabs would be taken".
13. The consequence of these events for S were, of course, that he was precipitately removed from the placement with Mr. and Mrs. B (where he had been for all but the first three weeks of his life); medically examined to ascertain whether or not he had been physically or sexually abused; and placed with alternative foster carers.
14. As it happened, the local authority's application for an interim care order was due before the justices on 17 October 2002. As I have already stated, on 16 October S was accommodated by the local authority with his mother's agreement. As the sole person with parental responsibility for S, her agreement was required for both the change of placement and the medical examination. However, although it is not recorded in the minutes of the strategy meeting held on 16 October 2002, it appears that in order to obtain Ms J's agreement, the decision was taken (1) to conceal the true reason for the change in S's foster placement from his mother; and (2) to mislead her about the nature of the medical examination.
15. In fact, it is clear that the local authority hoped to be able to get away with not telling S's mother anything. What happened was that the social worker in the case, Ms C, was instructed by her seniors, Ms JH (who had chaired the strategy meeting) and Mrs MJ (who had been present at it) to telephone S's mother, but to allow the telephone to ring only twice before putting down the receiver. This would enable Ms C to give evidence to the justices on the following day, at the hearing of the application for the interim care order, that she had attempted unsuccessfully to obtain the mother's agreement to a change of placement and the medical examination.
16. As it happened, this grossly unprofessional and wholly improper stratagem did not work. Ms. J had a mobile telephone and answered immediately after the second ring. Ms. C informed her that "for personal reasons", Mr. and Mrs. B had been unable to go on looking after S, and that he had had to be moved. Ms J was told her consent was required for a "welfare" medical. She was given no other information. Unsurprisingly, she consented to S having the "welfare" medical.
17. Ms. C was plainly very worried about what she was being asked to do, and subsequently made the following entry in her running records or "caseworker note sheet". I cite from it at some length:

16.10.00. Strategy meeting. 2.00pm. (illegible word) Decision made that S and

other child in Bs' placement was to be taken to (the local hospital) for 5.00pm

where they would be "swabbed" to ascertain any unusual bruising upon their

body's (sic) as a result of the police inquiry taking place. As S's status was

section 20 (ie voluntarily accommodated under CA 1989 section 20) consent

was to be sought from his mother, stating that it was to be a welfare medical

only. Informed MJ that I felt uneasy about lying to S's mum about the reasons

for his medical.

MJ understood my position and informed me that she would seek advice from

JH

Informed by MJ that JH had informed her that I was to ring her number (S's

mother) twice, and hang up which demonstrated that the (local authority) had

attempted to seek advice. Still felt uneasy about this and felt against my own

personal values and my SW (social work) training. Felt under pressure to

conform to (JH's) request. However, felt concern that I intended to seek an

interim care order on 17 October from (the magistrates) if (S's mother) was

aware of the true reason of medical and his removal from carers could

potentially make the hearing very difficult despite what the best interests were

for S.

Despite my better judgment, I (telephoned S's mother). Her mobile phone rang

twice on third call she answered.

I informed her that S was now with new carers for personal reasons Mr and

Mrs B were unable to continue on as carers for S.

(S's mother) accepted this. I informed her I would tell her the address of S the

following day (17 October 2002).

I asked her for permission for a routine welfare medical check to be carried

out on S. She agreed without questioning it, despite the call being made at

approximately 4.40 p.m. JW (social worker) agreed to take S and the child she

was (social worker) to (the hospital) accompanied by the police.

I was informed by Ms D (another social worker) that S's vest had not to be

washed, and that the police requested it.

S was returned back to new carers at approx. 7.3Opm

The hearing before the justices on 17 October 2002

18. On the following day, 17 October 2002, the local authority's application for an interim care order came before the justices. It was opposed by S's mother, who appeared in person, and who wished for S to be placed with her parents. Incredibly (I regret there is no other word) the justices were not told that S's placement with Mr and Mrs. B had been terminated on 16 October. The events of that day were, it seems deliberately, withheld from the court. As the justices' deputy clerk later said in a letter of complaint to the head of children's services for the local authority: "This was vital information so far as the court was concerned, and the magistrates sitting on 15 January 2003 (a later hearing to which I refer in paragraphs 47 to 49) were appalled by the fact that this evidence was withheld from their colleagues". That is a sentiment with which I can only agree.
19. The extent to which the justices were misled is clear from Ms C's statement and a number of passages in the carefully crafted and well-structured reasons which they gave for their decision to make an interim care order on 17 October 2002. Ms C's statement is dated 9 October 2002, but was not updated, either orally or in writing, for the hearing. It refers to S's "current" placement with Mr and Mrs B. It states in terms that: -

S continues to remain placed with the same foster carers and he has been placed

in this placement since November 2001. S's development is within the expected

range for a child of his age and he is progressing well in all areas since being

placed in this placement. The foster carers have been able to offer S a stable,

loving home that any child of his age requires.

20. The justices' reasons run to four A4 pages of single spaced typescript. They demonstrate the care the justices gave to the case, and are a model of their kind .At paragraph 4 under the heading Agreed Facts they state: -

When S was three weeks old, (his mother) agreed to the voluntary

accommodation of S by the local authority, and he has remained with the same

foster carers ever since.

21. Under the heading The likely effect of any change in Steven's circumstances they say: -

This little boy has only really known the current foster carers as his family and

would undoubtedly have bonded with them. He does not know his grandparents

and has had very little contact with his own mother. If no interim care order is

made today, we know that Ms J would take S and place him in the care of his

maternal grandparents. This would be devastating for him. Effectively he would

be placed with strangers who had not undergone any form of assessment. There

would be no gradual introduction or familiarisation process.

22. Finally, under the heading Our range of powers the justices state:

In our view it is essential that the local authority acquires parental responsibility

for S ….. S needs to be protected from a sudden, unplanned removal from his

current placement to the care of people he does not know.

23. The justices in their reasons deal fairly and sympathetically with the position of S's mother. They state: -

(She) has attended this hearing without any legal representation. She felt unable

to apply for an adjournment today but has told us that she will seek legal advice

urgently after this hearing. (She) has opposed the making of an interim care

order. In our view she has given very honest evidence about her current

situation and what has happened in the past. We accept that it must have been

very difficult for her to sit through these proceedings….. Ms J has accepted that

originally she did agree to S's adoption because she felt that she could not

adequately care for him. We know that she has since changed her mind because

she wishes S to be placed with her parents.

24. The justices hearing the application for an interim care order on 17 October were plainly a careful, conscientious and competent bench. That shines through from their reasons. It is patently obvious that the justices could not possibly have expressed themselves in the terms I have set out had they been told the truth about what had happened. They were comprehensively misled. The conduct of the local authority on 17 October was, frankly, wholly unprofessional and quite shocking.

Where was S's guardian on 17 October 2002?

25. At this point an immediate question arises. Where was S's guardian in all this? The dispiriting answer, of course, is that no children's guardian had been allocated. Although the longstanding practice under CA 1989 section 41 requires the court to appoint a guardian ad litem (now, of course, an officer of CAFCASS) and it was then for the guardian to appoint a solicitor under FPR 1991 rule 4.11A(1)(a), the ongoing crisis in CAFCASS relating to the shortage of guardians has resulted in the courts seeking to cover the absence of a guardian by first appointing a solicitor to represent the child. The guardian then joins the solicitor as and when he or she is, allocated.
26. This case demonstrates the disadvantages of this practice. S was represented before the justices on 17 October by a solicitor but, as no guardian had been appointed, none of the investigations which it is the guardian's duty to undertake had been initiated. It was, of course, only later, when the guardian was allocated and began his inquiries, that the truth about the local authority's behaviour began to emerge.
27. This case demonstrates, yet again, the vital need for the early appointment of guardians in proceedings under Part IV of CA 1989. Care proceedings are infinite in the variety of issues they throw up. A local authority deliberately misleading the court is, mercifully in my experience, rare, but an important safeguard against it and other unacceptable social work practices is the early appointment of a guardian and that guardian's access to the local authority's records under CA 1989 section 42.
28. In this case, the guardian was allocated to the case on 6 November 2002, some six weeks after the institution of the proceedings and almost three weeks after the making of the interim care order. That delay is unacceptable.
29. It is significant that the document which comprised the combined submission of the President of Family Division, the High Court Family Division Judges, the Council of Circuit Judges, the Association of District Judges and the District Judges of the Principal Registry of the Family Division to the Parliamentary Committee on the Lord Chancellor's Department in regard to their new inquiry into the work of CAFCASS earlier this year said:

The target standard that CAFCASS should aim to set itself for allocation of a

Guardian in a public law case is two working days; this is in line with the new

case management protocol, that will be put before the Lord Chancellor for

approval shortly. This is achievable, as it has been met by the NAGALRO

Panels in the North West.

30. I wholeheartedly endorse that objective. Had the guardian in this case been appointed timeously, and had the system worked as it should, the events of 16 October would have been handled quite differently, and it would not have been possible for the local authority to mislead the court in the way in which it did on 17 October 2002

Events after 17 October 2002

31. On 8 November 2002, Ms C filed a further statement on behalf of the local authority. Its purpose is stated to be "to update the previous statement filed on 9 October 2002". Whilst this statement does disclose that S's placement with Mr. and Mrs. B was terminated on 16 October 2002, it twice repeats the untruth that this was "for personal reasons". It also says the placement "broke down". That is at best disingenuous, and at worst downright misleading. The statement says nothing about S being medically examined.
32. On 18 November 2002, the local authority held a further strategy meeting again expressed to be relating to Mr. and Mrs. B. It was, once again, chaired by JH. The minutes disclose details of the videos removed from Mr. and Mrs. B's accommodation and the ongoing police investigation. They disclose that the medical examinations of S (and other child fostered by Mr and Mrs. B) showed the children were fit and well and that there were no other concerns.

The applications for discovery in the instant case

33. So, why does the case come before me? It comes on an application by the guardian for access to documentation under CA 1989 section 42. It does not, however, come directly to me. There have been other applications for discovery. I need to chart these in some detail in order to demonstrate what I have to say seems to me the quite extraordinary misunderstanding of the guardian's role in care proceedings on the part of the local authority resulting in a failure to co operate with him and to give him the disclosure to which he was plainly entitled.
34. On 29 November 2002, the guardian issued his first application for discovery of local authority documents. The form of the relief sought simply echoes the wording of section 42(1) to (c) of CA 1989 as set out in paragraph 2 above. Attached to the application, however, is a letter from the child's solicitor to the local authority dated 21 November 2002, which points courteously to the fact that there are gaps in the information provided by the local authority, and that both the termination of S's placement and the actions of the local authority thereafter need to be more fully understood. The letter continues: -

Can I ask therefore that clarification of these issues be provided:

1. The reasons and purpose of the termination of S's placement on 16

October 2002;

2. The reasons and purpose of the strategy meeting convened on 16 October

2002, the names of the attendees, the issues discussed and the decisions

made;

3. The outcome of the medical examination of S completed on 16 October

2002, the name of the medical practitioner performing the medical.

The Guardian will also request that all documents, minutes of the strategy meeting and medical report will be made available to him.

35. The response to this letter from the local authority's Head of Legal Services on 22 November 2002 was a bland assertion that Ms C had met the guardian on 18 November and "addressed all the issues raised" in the letter. This was manifestly not the case.
36. The guardian's application for discovery came before the justices on 4 December 2002. In his skeleton argument, the solicitor for the child pointed out that an examination of the local authority's social services files had caused the guardian to reach the following provisional conclusions namely (a) that the placement log for S was incomplete; (b) that the reason for the change in placement was not documented; (c) that there were no documents in the file explaining the need for the strategy meeting on 16 October; (d) that the minutes of that meeting were not on the file; (e) that the report from the doctor who had examined S was not on the file and (f) that the social services file appeared to have been edited.
37. The guardian also stated his belief that the court had been misled on 17 October and raised the allegation that Ms C had been instructed to use the device of telephoning Ms. J and putting the receiver down after two rings.
38. By letter dated 27 November 2002, the local authority asserted that the minutes of the strategy meeting were now available and that Ms J's permission had been sought prior to the medical. It acknowledged that Ms J had been told S was moved because of "personal problems between his foster parents".
39. On 4 December 2002 the justices made an order under CA 1989 section 42 for all records to be disclosed immediately by the local authority to the guardian. The case was re-listed for 11 December 2002. When the matter came before the justices again on that date, it was plain that the order of 4 December 2002 had not been obeyed, that the local authority was resisting further disclosure and was seeking to rely on public interest immunity (PII). As a consequence, the justices ordered the local authority to file a notice in Form C2 dealing with its argument relating to PII by 13 December 2002 and gave further directions designed to ensure that arguments over PII were heard on 15 January 2003.
40. In its form C2 dated 19 December 2002, the local authority, under the heading which required it to specify the order or directions it was seeking, stated that it had no objection to the guardian seeing the minutes of the Area Child Protection Committee (ACPC) Strategy meeting of 18 November 2002 "subject to them being edited to preserve the confidentiality of S's foster carer". The reason for this was because they contain confidential information relating to one of S's foster carers, which it would not be in the public interest to disclose".
41. In its skeleton argument dated 6 January 2003, the local authority sought to justify its stance on edited disclosure of the minutes of the meeting on 18 November 2002 by identifying the functions of the ACPC as "an inter-agency forum for agreeing how the different services and professionals should co-operate to safeguard children in the area." It described the purpose of the meeting on 18 November as a follow up to that held on 16 October "to establish how the police investigation was progressing". It was then asserted that the minutes contained personal intimate information about the foster carers, with only a brief reference to S. It argued that only limited disclosure of the minutes should take place "to preserve the confidentiality of the foster carers and the intimate details about them".
42. The skeleton argument cites CA 1989 section 42, and places emphasis on the phrase "with respect to the child concerned" in sub-section 1(a). Reference was also made to Re M (A Minor) (Disclosure of Material) [1990] 2 FLR 36, R v Chief Constable of the North Wales Police and others ex parte AB and another [[1998] 3 All ER 310; Re V; Re L [1999] 1 WLR 299, and Woolgar v Chief Constable of Sussex Police [1999] 3 All ER 604. However, the essence of the argument appears in the final paragraph of the skeleton, as follows:

The local authority accepts that the child's guardian has a right to see all

documentation in respect of S. However, the minutes in question do not relate

to S, but to his ex foster carer. The local authority has a duty of confidentiality

to its foster carers. The local authority has no objection to the child's guardian

seeing edited minutes of the meeting of 18 November 2002 but does not agree

to the disclosure of intimate details about the foster carer.

43. In his skeleton argument in response, the child's solicitor pointed to the fact that the local authority had withheld important information from the court on 17 October 2002, and submitted that the local authority had failed to identify any public interest which entitled it to preserve confidentiality on behalf of the foster carer. He referred to the guardian's duty, identified in Re C (Expert Evidence) (Disclosure: Practice) [1995] 1 FLR 204, to seek the directions of the court if, during his enquiries, he came across documents which the local authority did not intend to disclose. That, however, was quite different from denying the guardian access to the documents in the first place. Such an attitude, it was argued, contradicted the fundamental point that there needed to be the fullest co-operation between ACPCs and the court.
44. The guardian's principal argument, however, was that the local authority was confusing two concepts: that of PII on the one hand, and that of confidentiality on the other. PII, he submitted, simply did not apply in this case, and such confidentiality which did exist did not override the statutory rights of the guardian under CA 1989 section 42 to access information from the local authority files.
45. It could not, the guardian submitted, be in the public interest to keep confidential and out of the public domain the fact that a local authority foster carer had been arrested by the police in an ongoing enquiry into child pornography and related child abuse. To the contrary, the public interest was served by making that information available to the court. Furthermore, making the information available did not amount to disclosure, since any such documents remained confidential to the proceedings as laid down by the FPR. The same point met the objection that disclosure was a breach of the foster parents' right to respect for family life under Article 8 of the European Convention on Human Rights, which was in any event qualified.
46. On 15 January 2003, the guardian's application for disclosure came again before the justices, who heard argument, and also took the evidence of Ms C. Ms C, on oath, told the justices how information had been withheld from the bench on 16 October; she described the duplicitous manner in which she had been instructed to make contact with Ms J and what she had told Ms J about the medical examination of S on 16 October 2002.
47. The justices were appalled to learn that their colleagues had been misled on 17 October 2002, and that information had been withheld from them. They accordingly instructed their clerk to write to the local authority's head of children's services, Mr. P, requiring an explanation. That letter is dated 22 January 2003, and raises three specific points: (1) the fact that vital information had been withheld from the justices on 17 October 2002; (2) the instruction from JH and MJ to Ms C about putting the telephone down before S's mother could answer; and (3) what they describe in terms as the "lie" to Ms J about the nature of the medical S was to undergo.
48. On 15 January 2003, the justices do not appear to have ruled on the guardian's application for discovery, which they put over to 19 February 2003. On 18 February the guardian orally requested a sight of the letter from the justices' clerk to Mr. P, which the local authority refused. The guardian then widened the scope of his request to the court for disclosure to include the letter, and documents created by the local authority following receipt of the letter. He also, for the first time, specifically sought an order for his costs.
49. On 19 February 2003 the justices directed that their clerk's letter of 22 January 2003 be disclosed to the guardian. The balance of the application was put over to 5 March 2003. However, on that day, they acceded to an application by the local authority for the matter to be transferred to the county court. In their clear and succinct reasons, they state (1) that it was clear the documents sought by the guardian blended disciplinary and welfare matters; (2) that the court had made a formal complaint to the local authority about its conduct; and (3) the matter had become so complex that the guidelines and case law advised that the proceedings should be dealt with by a higher court. Thus it was that the case in due course came before me on 16 April 2003, following the hearing of Mr. M's appeal against the justices' refusal to join him as a party to the proceedings.
50. As is so often the case with piecemeal disclosure, a document which has eventually been disclosed refers to other documents. This then gives rise to a further application for disclosure. This is what has happened here. Mr. P's response to the letter from the justices' clerk, which is dated 11 April 2003, reveals that as a consequence of the justices' complaint, the local authority had commissioned an independent enquiry and report from a Mrs. AH, said until recently to have been "a senior manager in the social services department of a neighbouring local authority". Her report had been received by the local authority. However, the report had only been made available within the local authority to the Manager, Children and Families, the Head of Legal Services and "appropriate legal advisers". The letter continues:

We have taken legal advice on whether this report should be disclosed to the

court and have decided against the same. However, it has also been decided

that the best way of giving a full explanation and attempting to restore the

confidence in the council and its working practices is to relay so much of the

report that we feel we can without compromising other people's positions.

51. I was told very frankly by counsel for the local authority that she had drafted the letter for Mr. P dated 11 April 2003 in an attempt to satisfy the court's need for information and the guardian's entitlement to information without breaching PII and disclosing matters which did not come within section 42. I do not doubt counsel's good faith, but I have to say that if she advised the local authority not to disclose Mrs. AH's report to the court, and if she advised the local authority that the report was not a document the guardian was entitled to inspect under CA 1989 section 42, that advice was, in my judgment, wrong.
52. Furthermore, as I commented during the course of argument, if Mr. P's letter is meant to re-assure the court that the local authority has fully addressed the justices' anxieties, it fails. The tone of the letter is exculpatory and full of unfocused generalisations. I get no sense at all of what happened in this child's case.
53. The tone is set by what is apparently the first of Mrs. AH's recommendations:

A protocol may already exist between CID, CPU and SSD for screening to see

if children in need are present at an address under police investigation. If this

is not then it should be considered. This could be part of any review carried

out as a result of the Climbie inquiry.

54. A protocol either exists or it does not. What sort of enquiry is it which concludes that it may or may not exist? The justices wanted to know about S. How was it that the police apparently raided the house of Mr. and Mrs. B in the early hours of the morning without knowing that they were fostering S and another child?
55. It is not necessary for the purposes of this judgment for me to trawl through Mr. P's letter pointing out its manifest deficiencies. That task will be for others. For the purposes of deciding the issue of disclosure, however, I need to point to what is, perhaps, the most worrying paragraph of the letter, which is in the following terms:

The key Social Worker for S was not experienced, and it remains unclear how

the Social Worker came to understand that she had been instructed to contact

S's mother by phone and letting it ring twice. It is clearly fortunate that in the

event the mother did receive the call and was alerted to the placement change

and that some form of medical was to take place. It is without doubt, however,

that if such a directive was given to make a token attempt to contact S's

mother, this was indeed bad practice and such practice will not be tolerated by

the council.

56. I have to say I find this an extraordinary paragraph. The justices had raised precisely this point - see paragraph 47 above - and the local authority had commissioned Mrs. AH to investigate precisely this point Ms C had told the justices, on oath, that she had been instructed by two named individuals, JH and MJ to behave in this way, and she had earlier made an entry to that effect in her running record. What confidence can anybody have in the judgment of those who, against that background, report and appear to accept that it is "unclear" how Ms C came to be given that instruction?

57. It is frequently my experience in hearing applications under Part IV of CA 1989 that inexperienced social workers are given the conduct of extremely difficult cases, and are provided with inadequate support and advice by their managers. In the instant case, Ms. C is, of course, to be severely criticised for misleading the mother and the court. But in my judgment, a far larger degree of responsibility lies with her superiors. The evidence before the court is plain. Ms C was given a grossly unprofessional and improper instruction by Ms JH and Ms MJ. Mrs. AH - it appears - has failed to address that issue.. That, in my judgment, is manifestly unsatisfactory and makes it all the more important that the guardian sees Mrs. AH's full report, and not selections made by the local authority.
58. Lest it be thought that these considerations appear to be departing from the issue before the court, the underlying question here remains: what happened to S? What coordination was there between the police and the local authority? Did S need to be removed so precipitately from his foster carers? What was the effect on him of being so removed? What does the whole course of action say about the judgment of the local authority in its decision making processes about S? What does it say about coordination between police and social services in areas of child protection? When examining the care plan, and the local authority's recommendation that S should be placed for adoption, can the court have confidence that those decisions have been properly taken; that the options have been fully examined, and that the local authority has prepared a carefully thought out plan for S which has excluded all other options?
59. Furthermore, if Ms J is going to be asked to give her agreement to S being freed for

adoption, she is surely entitled to full access to all relevant information. Ms J may be

a feckless and incompetent parent, but that is no reason for her not being treated

properly. Indeed, in my judgment, the test of any system lies in how it treats those

who are the most difficult, the most incompetent and the least co-operative.

The Guardian 's application under section 42

60. I have deliberately set out the background to the guardian's application in such detail because in my judgment it is manifest that there 'is simply no answer to it. It is equally apparent, however, that by its defensive - indeed obstructive - attitude the local authority has both greatly increased the costs of the case, and unnecessarily complicated what ought to be very simple care proceedings which, had they been conducted properly, should never have needed to leave the family proceedings court, Even in argument before me, a principal theme advanced by counsel for the local authority was that the guardian was behaving officiously, that "inter-agency strife" had found its way into the case, and that the guardian was trying to "discipline" the local authority. The first and third of those suggestions are manifestly not borne out by the evidence. If there is "inter-disciplinary strife" it derives from the local authority's behaviour.
61. The very simple question in this case is: do Mrs AH's report and the other documents which the guardian seeks to inspect come within section 42? The answer to that question is manifestly "yes". The only two points which the local authority seeks to advance are (1) its duty of confidentiality to Mr and Mrs B and (2) the argument that the report does not "relate" to S.
62. The latter is patently unarguable. Mrs. AH's report was commissioned to address complaints by the justices about the manner in which S's case was handled. How can that be said not to relate to S?
63. If authority for the meaning of the word "relate" is required, it is to be found in the decision of the Court of Appeal in Re R (Care Proceedings: Disclosure) [2000] 3 FCR 721 (Re R), upholding the decision of Wilson J to whose careful judgment Dame Elizabeth Butler-Sloss P paid tribute, suggesting that it merited wider dissemination. As it does not appear to have reached the legal department of this local authority, I propose to repeat its main conclusions.
64. Re R concerned what is known as a Part 8 review, that is to say a report prepared by an ACPC for a local authority in the circumstances envisaged by Part 8 of Working Together under the Children Act 1989: a guide to arrangements for inter-agency co-operation for the protection of children from abuse initially published by the Department of Health and the Department of Education and Science in 1991, since revised, and invariably known as Working Together. Paragraph 8.1 provides that:

Whenever a case involves an incident leading to the death of a child, where

child abuse is confirmed or suspected, or a child protection issue likely to be

of major public concern arises, there should be an individual review by each

agency and a composite review by the ACPC

65. The child who had died (AR) was the half-brother of the child (ZR) who was the subject of the care proceedings before Wilson J. The guardian in ZR's proceedings sought disclosure of the Part 8 Review in relation to AR. That application was resisted by the ACPC and by the local authority.
66. In a full and careful judgment, Wilson J decided that (1) the Review was a document held by the local authority; (2) that it was compiled in connection with functions which stand referred to the social services committee under the Local Authority Social Services Act 1970; and (3) that it related to ZR. On the latter point, which was not pressed by counsel for the local authority, Wilson J commented :-

If the test had been whether the main focus or primary subject of the

document was the child who is the subject of these proceedings, namely ZR

(counsel for the guardian) would have been in difficulties. But Parliament has

chosen, in my view deliberately chosen, wider words than that. The question

is whether the report relates to the child R.

67. In the Court of Appeal, counsel for the local authority conceded that she could not challenge Wilson J's interpretation of the Statute, and the appeal inevitably failed. The President, giving the leading judgment, said that she could not think of anyone who had a more legitimate interest in the relevant information that might be contained in the review than the guardian.
68. The ratio decidendi of Re R is clear. Section 42 should be given its literal interpretation and should not have read into it a restrictive meaning designed to alter the policy of mutual co-operation between the various welfare and child protection agencies which Parliament has laid down.
69. In my judgment, Re R applies exactly to the instant case. The report which the guardian wishes to see was prepared by the local authority in response to a complaint by the justices in the proceedings relating to S. It was thus plainly compiled in connection with the local authority's application for a care order relating to S, and equally plainly relates to S. In my judgment, any other analysis is unarguable.
70. I need, however, to deal with the question that PII somehow trumps section 42.The answer to that seems to me very simple. If the document the guardian wishes to examine and take copies of falls within CA 1989 section 42, PII simply does not arise so far as the guardian's inspection is concerned. In this respect, it seems to me that the argument put forward by the guardian which I have summarised at paragraph 44 and 45 of this judgment is exactly in point, and I accept it.
71. The point is also addressed by Wilson J and the Court of Appeal in Re R. In that case, the guardian argued his case in the alternative. Firstly, he asserted a right under section 42: alternatively, if that right did not exist, the court should nonetheless order disclosure, notwithstanding that PII would then apply: - see [2000] 3 FCR 721 at 725b-c. It must be remembered that section CA 1989 section 42(3) gives the guardian the right to inspect "regardless of any enactment or rule of law which would otherwise prevent the record in question being admissible in evidence" (my emphasis). That phrase manifestly embraces PII.
72. In my judgment, therefore, the cases cited to me by counsel dealing with PII and identified at paragraph 43 of this judgment are irrelevant. The documents with which I am concerned all fall within CA 1989 section 42. The local authority's reliance on PII is misconceived.
73. I stress, however, that I am dealing only with the rights of the guardian under CA 1989 section 42. What happens to the documents inspected by the guardian thereafter, and who else may be entitled to see them, are quite different questions. In particular, it remains the case, of course, that the documentation in the local authority's possession to which CA 1989 section 42 relates is confidential. Its confidentiality is not abrogated by disclosure to the guardian. Furthermore, the information remains within the ambit of the proceedings, which are themselves confidential. In this context, I think it worthwhile repeating what the President said on this topic in Re R [2000] 3 FCR 721 at 731- 2:

17. I think, however, that there is some force in what Miss Macur has said

about the use of the Part 8 review. I have no doubt whatever that the guardian

ad litem should have the right to read that review, and not the executive

summary offered to the media and the parents. The full review should be

available to the guardian, as is his right under the interpretation of Wilson J,

with which I respectfully agree. How he uses it is another matter. There are

areas in the Family Proceedings Rules 1991 which do to some extent limit the

way in which information provided to the guardian should be further

disseminated.

18. I can see that the guardian needs the review to see if there is any

information relevant to the living child in this case which might help him to

give the appropriate advice and provide the appropriate report to the court.

That does not mean that the sensitive information needs to be disclosed, and I

would have thought that once the guardian ad litem saw the report and saw

the relevance of it he would, I am sure, as an experienced guardian (and all

guardians are very experienced, being either social workers or probation

officers) be very careful as to how he further disseminated any information.

19. There would be no objection, it would seem to me, if, when the guardian

is given the report, there are matters about which the police or any other

agency is particularly concerned (and examples were sought to be given to us

by Miss Macur) that the agency could make sure that the guardian knew that

the information was particularly sensitive. Guardians are always receiving

very sensitive information and dealing with it with the utmost discretion.

20. It was suggested that there may be guardians who would not be discreet,

but that does not affect the principle; it only affects the implementation. If

there is any worry about that, it may be that there could be a request to the

guardian or indeed a request to the district judge that particular information

should not be further disseminated. But to the guardian there can be no doubt

that it must be provided, so long as the guardian recognises that any of the

information which is not relevant, or should not be relevant, to the living

child should not be passed on, and even relevant information in relation to

the living child may need to be dealt with sensitively.

21. I have gone on about this matter at some length because I recognise that

Miss Macur would not be here on behalf of an ACPC (with apparently other

ACPCs very concerned) if there was not, in their perception, a problem. At

the moment I cannot see a problem, and I hope my observations will go

some way to comforting them to the extent that it is appropriate that they

should be comforted.

The duty of the local authority to co-operate with the guardian and be frank with the court

74. In his letter of 11 April 2003 to the clerk to the justices, Mr. P, the local authority's director of social services reports Mrs. AH as concluding that "the practitioners and legal representatives are feeling very bad about this case and would benefit from some debriefing rather than censure". It has to be said, however, that the local authority's behaviour in misleading the court as it did on 17 October 2002 is so fundamental a breach of its duty to S and to the court that censure is unavoidable.
75. It would be idle to pretend that tensions do not sometimes exist between local authority social workers and guardians in care proceedings. Social workers frequently feel that their work is devalued; that the guardians have an enhanced status, and that the guardian's viewpoint, is given disproportionate weight.
76. It is, I think, necessary therefore to re-iterate that social workers and guardians have different, but equally important roles in care proceedings. In the overwhelming majority of cases, it is the social workers' assessment's which form the bedrock of the case, which are of critical importance for the child or children concerned and which form the basis for the court's decision. If those assessments are competently carried out, and sound conclusions drawn from them, the court will usually follow the local authority's care plan, but even if the court does not arrive at the same conclusion, the social workers cannot, in my judgment, be criticised, nor should their work be devalued.
77. The guardian is the child's protection against poor social work practice. It follows that, if the social work assessments are professionally carried out and their conclusions sound, the guardian is likely to agree with them and so advise the court.
78. It is, however, essential in my judgment, that neither the local authority nor the guardian should adopt an adversarial stance the one towards the other. Of course the guardian has a duty to subject the social work assessments to a rigorous scrutiny, but if this is done professionally, the result should be constructive rather than confrontational. Co-operation is much more in the interests of the child than attempts, as here, to deny the guardian access to material which he is plainly entitled to see.
79. Above all, however, the local authority has a duty to be open and frank in the evidence it provides to the court. Of course the local authority has to prove a case: it must establish the threshold criteria. But its assessment must always be balanced; the positive as well as the negative aspects of parents and families must be stated. This is why the welfare principle in CA 1989 section 1 requires the proceedings to be non-adversarial.
80. In this respect, I think I can do no better than to quote the words of Parker LJ in L v L (child Abuse : Access) [1989 2 FLR 16 at 29G: -

I fully appreciate the difficulties which social workers are under and that they

stand to be shot at almost whatever they do. But one thing seems to me to be

abundantly apparent and that is that when they come before the court to assist

the court to find out what is the best for the child, they should include

everything and conceal nothing.

The role of the justices

81. With one exception, I would like to pay tribute to the way the justices dealt with this case. Although the point proved academic, I think it likely that, had Mr. M prosecuted his appeal against the refusal to join him as a party, I would have allowed it for the reasons given in paragraph 8. I was, however, particularly impressed with the reasons which the bench gave for the making of an interim order on 17 October 2002, which are a model of their kind. The quality of those reasons heavily underscores the mischief perpetrated by the local authority's behaviour in misleading them. Had they been told the truth, the result may still have been the making of an interim care order, but I have no doubt at all that before making it the justices would have made a number of detailed enquiries about S and would have insisted on a properly detailed care plan.

Costs

82. The guardian seeks his costs of the disclosure issue. When I heard oral argument before reserving judgment, I indicated that if, having considered the matter, I was minded to make an order for costs against the local authority, I would give counsel the opportunity to address me on the point.
83. We are, of course, dealing here with two publicly funded parties, and an order for costs would only be appropriate if I concluded that the conduct of the local authority was so unreasonable as to make an order in favour of the Legal Services Commission appropriate.
84. Having considered the matter, I have come to the conclusion that the guardian has an properly arguable case on costs, and that the local authority should not have resisted the application for disclosure. I propose, accordingly, to invite further submissions on the point in writing prior to the date this judgment is handed down, which I will consider. If counsel wish to argue the point further orally, a date and time will need to be fixed for this to be done.

The result

85. The guardian is entitled to inspect and take copies of Ms H's report and all other documents in the local authority's possession relating to S and which fall within CA 1989 section 42. I invite further submissions' on the question of costs.

Footnote: anonymity and costs

86. I have deliberately written this judgment anonymously, so that it can be published. I shall not be taking the final hearing of the care proceedings on 30 June 2003, which will be heard by the local designated family judge. I am, however, sufficiently concerned about the events which I have described in this case to send a copy of this judgment to the Family Division Liaison Judge for the circuit in question, as well as the Social Services Inspectorate, CAFCASS and HM Magistrates' Courts Service Inspectorate. A copy should also be made available to the Clerk to the Justices and shown to those justices engaged in the case.
87. In the event, the local authority did not resist the guardian's application for costs. I take the view that this was wise, as it is plain to me that the local authority's resistance to the guardian's application was wrong from beginning to end, and that as a consequence costs have been incurred quite unnecessarily.
88. The guardian sought an indemnity as to his costs. In my judgment, as he is publicly funded, the correct order is for the local authority to pay the guardian's costs of and in relation to the application for disclosure in the sum assessed by the costs judge on the detailed public funding assessment of his costs. In this way the Legal Services Commission will recoup the costs of this application which it would otherwise paid to the guardian, his solicitors and counsel.