![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales High Court (Administrative Court) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Shoesmith, R (on the application of) v Ofsted & Ors (Includes Ruling and Submissions) [2010] EWHC 852 (Admin) (23 April 2010) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2010/852.html Cite as: [2011] PTSR D13, [2010] EWHC 852 (Admin) |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Buy ICLR report: [2011] PTSR D13]
[Help]
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
THE QUEEN On the Application of SHARON ![]() ![]() |
Claimant |
|
- and - |
||
(1) OFSTED (2) SECRETARY OF STATE FOR CHILDREN SCHOOLS AND FAMILIES (3) LONDON BOROUGH OF HARINGEY |
1st Defendant 2nd Defendant 3rd Defendant |
____________________
Tim Ward and Ben Lask (instructed by Treasury Solicitors) for the 1st Defendant
James Eadie QC and Clive Sheldon (instructed by Treasury Solicitors) for the 2nd Defendant
Ingrid Simler QC (instructed by Haringey Legal Services) for the 3rd Defendant
Hearing dates: 7th, 8th and 9th & 12th October 2009
Also: 10th November and 11th December
Further written submissions and representations between 9th February 2010 and 18th March 2010
____________________
Crown Copyright ©
Mr Justice Foskett:
1. Introduction
"I am satisfied that the claim crosses the threshold of arguability. I am also satisfied that an extension of time has been justified for challenging the decisions dated 1 December 2008. I do not consider that permission should be refused on the grounds of lack of promptitude or the availability of any other remedy."
2. The progress of the case
3. The nature of the applications before the court
(a) an inquiry into child protection arrangements across the country generally;(b) an inquiry into child protection arrangements in Haringey at the time of Peter's death or at any other time;
(c) an inquiry into the reasons and responsibilities for Peter's death;
(d) a claim for compensation by the Claimant.
(a) to decide whether, on their merits, the various decisions and judgments made leading to the Claimant losing her job were right or wrong; or
(b) to adjudicate on the accuracy or validity of the evidence on which the conclusions in the Ofsted report were based or on whether those conclusions were themselves justified.
That is not what an application for judicial review is essentially about and all parties were agreed that that was so in this case. My task has been to consider whether the decision-making processes were flawed by unfairness or by the influence of improper and/or irrelevant considerations such as to render them unlawful and thus liable to be quashed or amenable to some other form of relief normally granted on an application for judicial review. It follows that it has not been for me to decide whether the final version of the Ofsted report was deliberately slanted in a way that put the Haringey Department of Children's Services and/or the Claimant personally in a less favourable light than the evidence justified. That would be delving into the merits of the inspection which, on a judicial review application, is not permissible. If any suggestion to this effect is maintained, it is something that would need to be pursued elsewhere than in these proceedings.
4. The evidence and its evaluation
"It is a convention of our litigation that at trial in general the evidence of a witness is accepted unless he is cross-examined and is thus given the opportunity to rebut the allegations made against him. There may be an exception where there is undisputed objective evidence inconsistent with that of the witness that cannot sensibly be explained away (in other words, the witness's testimony is manifestly wrong), but that is not the present case. The general rule applies as much in judicial review proceedings as in other litigation, although in judicial review proceedings it is relatively unusual for there to be a conflict of testimony and even more unusual for there to be cross-examination of witnesses."
5. Some preliminary observations
6. The statutory background
(i) general
" … Radical reform is needed to break down organisational boundaries. The Government's aim is that there should be one person in charge locally and nationally with the responsibility for improving children's lives. Key services for children should be integrated within a single organisational focus at both levels. To achieve this the Government will:
- legislate to create the post of Director of Children's Services, accountable for local authority education and children's social services
- legislate to create a lead council member for children
- in the long term, integrate key services for children and young people under the Director of Children's Services as part of Children's Trusts. These bring together local authority education and children's social services, some children's health services, Connexions and can include other services such as Youth Offending Teams. Children's Trusts will normally be part of the local authority and will report to local elected members
- require local authorities to work closely with public, private and voluntary organisations to improve outcomes for children. Local authorities will be given flexibility over how this partnership working is undertaken
- in relation to child protection, require the creation of Local Safeguarding Children Boards as the statutory successors to Area Child Protection Committees.
(ii) local
(a) the functions conferred on or exercisable by the authority which are specified in subsection (2); and
(b) such other functions conferred on or exercisable by the authority as may be prescribed by the Secretary of State by regulations."
"3.3 The work of LSCBs is part of the wider context of children's trust arrangements that aim to improve the overall wellbeing (i.e. the five Every Child Matters outcomes) of all children in the local area.
3.4 While the work of LSCBs contributes to the wider goals of improving the wellbeing of all children, it has a particular focus on aspects of the 'staying safe' outcome.
3.5 Whereas the children's trust has a wider role in planning and delivery of services, LSCB objectives are about co-ordinating and ensuring the effectiveness of what their member organisations do individually and together. They will contribute to delivery and commissioning through the Children and Young People's Plan and the children's trust arrangements.
3.6 There is flexibility for a local area to decide that an LSCB should have an extended role or further functions in addition to those set out in this chapter. Those must of course still be related to its objectives. The decision should be taken as part of the scope of the wider children's trust. However, the LA and its partners should make sure that any extended role does not lessen the LSCB's ability to perform its core role effectively."
"3.38 From 1 April 2008, each LSCB will have the functions set out in Regulations relating to child deaths. They become compulsory on LSCBs by that date, but can be carried out by any LSCB from 1 April 2006.
e) Collecting and analysing information about the deaths of all children in their area with a view to identifying:
i) any matters of concern affecting the safety and welfare of children in the area of the authority, including any case giving rise to the need for a serious case review
ii) any general public health or safety concerns arising from deaths of children.
f) Putting in place procedures for ensuring that there is a co-ordinated response by the authority, their Board partners and other relevant people to an unexpected death of a child."
"3.49 It is the responsibility of the LA [Local Authority], after consultation with the Board partners, to appoint the Chair. The Chair may be a LA employee, such as the Director of Children's Services (DCS) or the LA Chief Executive, a senior employee of one of the Board partners, or another person contracted with, or employed specifically, to fulfil this role. Where the Chair is not a senior person from the LA, such as the DCS or Chief Executive, they are accountable to the LA, via the DCS, for the effectiveness of their work as LSCB Chair. The Chair should not be an Elected Member ….
3.50 The Chair has a crucial role in making certain that the Board operates effectively and secures an independent voice for the LSCB. He or she should be of sufficient standing and expertise to command the respect and support of all partners. The Chair should act objectively and distinguish their role as LSCB Chair from any day-to-day role – e.g. as an employee of the LA."
"8.2 When a child dies, and abuse or neglect is known or suspected to be a factor in the death, local organisations should consider immediately whether there are other children at risk of harm who require safeguarding (e.g. siblings, or other children in an institution where abuse is alleged). Thereafter, organisations should consider whether there are any lessons to be learnt about the ways in which they work together to safeguard and promote the welfare of children. Consequently, when a child dies in such circumstances, the LSCB should always conduct a serious case review into the involvement with the child and family of organisations and professionals….
8.3 The purpose of serious case reviews carried out under this guidance is to:
- establish whether there are lessons to be learnt from the case about the way in which local professionals and organisations work together to safeguard and promote the welfare of children
- identify clearly what those lessons are, how they will be acted on, and what is expected to change as a result; and
- as a consequence, improve inter-agency working and better safeguard and promote the welfare of children.
8.4 Serious case reviews are not inquiries into how a child died or who is culpable. That is a matter for Coroners and criminal courts, respectively, to determine as appropriate."
"8.19 The LSCB should commission an overview report that brings together and analyses the findings of the various reports from organisations and others, and that makes recommendations for future action.
8.20 The overview report should be commissioned from a person who is independent of all the agencies/professionals involved. Those conducting management reviews of individual services should not have been directly concerned with the child or family, or the immediate line manager of the practitioner(s) involved."
"In all cases, the LSCB overview report should contain an executive summary that will be made public and that includes, as a minimum, information about the review process, key issues arising from the case and the recommendations that have been made. The publication of the executive summary needs to be timed in accordance with the conclusion of any related court proceedings. The content needs to be suitably anonymised in order to protect the confidentiality of relevant family members and others."
(iii) Ofsted and other inspections
"Joint Area Reviews
(1) Any two or more of the persons and bodies to which this section applies must, at the request of the Secretary of State –
(a) conduct, in accordance with a timetable drawn up by them and approved by the Secretary of State, a review of children's services provided in –
(i) the area of every children's services authority in England;
(ii) the areas of such children's services authorities in England as may be specified in the request;
(b) conduct a review of such children's services provided in the area of such children's services authority in England as may be specified in the request.
(2) Any two or more of the persons and bodies to which this section applies may conduct a review of any children's services provided in the area of a particular children's services authority in England.
(3) The purpose of a review under this section is to evaluate the extent to which, taken together, the children's services being reviewed improve the well-being of children and relevant young persons (and in particular to evaluate how those services work together to improve their well-being).
(4) The persons and bodies to which this section applies are–
(a) the Chief Inspector of Schools;
…
(d) the Commission for Healthcare Audit and Inspection …;
(5) Reviews under this section are to be conducted in accordance with arrangements made by the Chief Inspector of Schools …"
(iv) Governmental intervention
"(1) This section applies to a local education authority's functions under this Act and to other functions (of whatever nature) which are conferred on them in their capacity as a local education authority.
(2) If the Secretary of State is satisfied (either on a complaint by any person interested or otherwise) that a local education authority are failing in any respect to perform any function to which this section applies to an adequate standard (or at all), he may exercise his powers under subsection (4), (4A) or (4B).
(2A) The Secretary of State may also exercise his powers under subsection (4), (4A) or (4B) where—
(a) he has given a previous direction under subsection (4), (4A) or (4B) in relation to a local education authority in respect of any function to which this section applies, and
(b) he is satisfied that it is likely that if no further direction were given under subsection (4), (4A) or (4B) on the expiry or revocation of the previous direction the authority would fail in any respect to perform that function to an adequate standard (or at all).
(4) The Secretary of State may under this subsection give the authority or an officer of the authority such directions as the Secretary of State thinks expedient for the purpose of securing that the function is performed on behalf of the authority by such person as is specified in the direction; and such directions may require that any contract or other arrangement made by the authority with that person contains such terms and conditions as may be so specified.
(4A) The Secretary of State may under this subsection direct that the function shall be exercised by the Secretary of State or a person nominated by him and that the authority shall comply with any instructions of the Secretary of State or his nominee in relation to the exercise of the function.
(4B) The Secretary of State may under this subsection (whether or not he exercises the power conferred by subsection (4) or (4A) in relation to any function) give the authority or an officer of the authority such other directions as the Secretary of State thinks expedient for the purpose of securing that the function is performed to an adequate standard.
…..
(7) Any direction given under subsection (4), (4A) or (4B) shall be enforceable, on an application made on behalf of the Secretary of State, by an order of mandamus."
7. Guidance on the duties of the DCS and LM
"2.5 This guidance is issued under sections 18(7) (Director of Children's Services) and 19(2) (Lead Member for Children's Services) of the Act, which requires that CSAs 'must have regard to any guidance issued by the Secretary of State' in exercising their functions under those sections. This means they must take the guidance into account and, if they decide to depart from it, have clear reasons for doing so.
2.6 The provisions of this guidance relating to the DCS are statutory for any authority that exercises its power to appoint a DCS under Section 18, and for all authorities once the duty to appoint a DCS comes into force …. The provisions of the guidance are advisory in relation to the LM until section 19 of the Act is brought into force. After that date, the provisions become statutory guidance.
2.7 Where a local authority has appointed a DCS and/or designated a LM in advance of both the statutory powers and duties under sections 18 and 19 of the Act being brought into effect, the authority will need to ensure that the DCS' and LM's duties and responsibilities are aligned with the guidance in this document, once the duty to appoint or designate comes into force."
"3.2 The Director of Children's Services will have three key roles:
a. professional responsibility and accountability for the effectiveness, availability and value for money of the Local Authority children's services;
b. leadership both within the Local Authority to secure and sustain the necessary changes to culture and practice, and beyond it so that services improve outcomes for all and are organised around children and young people's needs; and
c. building and sustaining effective partnerships with and between those local and out-of area bodies, including the private, voluntary and community sectors, who also provide children's services in order to focus resources (financial, human, physical or any other resources) jointly on improving outcomes for children and young people, particularly in safeguarding and promoting the welfare of children."
"4.16 Accountability and responsibility for the delivery of Local Authority children's services includes assuring the Chief Executive and, through him or her, the members of the authority's executive and members of overview and scrutiny committees, that:
a. the needs of children and young people in the authority's area have been assessed; resources from the Local Authority, other public agencies, the private sector, and the voluntary and community sector, have been identified; and services are being appropriately targeted on delivering improved outcomes;
b. the children's services provided or commissioned by the authority and its strategic partners are effective at meeting identified need, are more integrated, child and family orientated, and directed towards achieving outcomes shared across agencies;
c. there are sufficient financial, human and other resources available to discharge the authority's statutory children's services functions and maintain service standards in the future, and staff are supported and developed so that they have the required competencies;
d. the arrangements by which the DCS acts as principal point of contact for the conduct of local authority children's services business with the Department of Education and Skills, other government departments, and organisations with responsibility for inspections (e.g. inspectorates and commissions) are operating effectively;
e. information is being provided to national agencies as required;
f. services comply with statutory requirements, including equality and anti-discrimination legislation; and
g. arrangements are in place through which concerns may be raised within the Local Authority that systems and practices may be unsatisfactory."
"3.3 The Lead Member's role mirrors the DCS' role at the local political level. The LM will have:
a. political accountability for the effectiveness, availability and value for money of all Local Authority children's services;
b. leadership within and beyond the Local Authority to engage and encourage local communities in order to improve children's services, and to ensure that services, both within the Local Authority and across partner organisations, improve outcomes for all and are organised around children and young people's needs; and
c. a particular focus, with the DCS, on safeguarding and promoting the welfare of children across all agencies."
8. Previous Ofsted involvement
"The majority of assessments of need are undertaken in a timely way. In recent years, a high proportion of initial assessments have been made in response to referrals, reflecting an understandably cautious approach to protecting children. However, cases are not always prioritised sufficiently well or consistently by referral and assessment services; there is variation in practice between the two geographically-based teams, including the application of national guidance on sharing information. There are delays in addressing some children's needs, including potential child protection concerns; in some of the individual cases sampled during the review, standard assessments had not been carried out, making planning difficult and resulting in delays for children and young people. The turnover of social work staff is high, resulting in lack of continuity in managing cases. The electronic recording system, Framework I, has the potential to provide a good overview of practice but there continue to be problems in embedding the system and there is as yet insufficient management scrutiny of electronic files."
9. The material events from Peter's death until 11 November 2008
"… the role of [GOL] is to act as an intermediary between central and local government, ensuring improved coordination of local children's services, monitoring performance of local authorities in this policy area and facilitating communication between local authorities and central government. Where serious case reviews are concerned, [GOL] is responsible for tracking the progress of the reviews and for providing support and challenge e.g. commenting on the quality of the reviews' analysis and recommendations."
"The decision to set up a serious case review should be taken within a month of the case coming to the attention of the Chair, and the review should be completed within four months unless an alternative timescale is agreed with the Government Office. Sometimes the complexity of a case does not become apparent until the review is in progress. As soon as it emerges that a review cannot be completed within four months of the LSCB Chair's decision to initiate it, there should be a discussion with the Government Office to agree a timescale for completion."
"This was my first SCR and was the first SCR to be conducted at Haringey since the new service was formed. I was keen to ensure that it was conducted entirely properly and as such I followed the advice in "Working Together", sought advice from colleagues in GOL as to how the process would be managed given the seriousness of the case and the likely public concern, and I discussed best practice with colleagues in other authorities who had experience of SCRs."
"Following a meeting between [GOL] colleagues and Haringey on 29 April 2008 we understand that the authority is now looking to finalise the SCR by mid/end of May…. the [DCSF] has been promised a full copy of the final version which will be sent in parallel to Ofsted for evaluation. The timing of making this version available will be in advance (at least a week) of the related trial commencing (schedule 9 June). Haringey will not publish the executive summary of the SCR until after the trial has concluded. This will allow the part of the SCR which enters the public domain [Executive Summary] to reflect both the trial outcome and the result of Ofsted's evaluation.
[GOL] colleagues have worked with Haringey to strengthen the recommendations in the SCR and have also pushed for the authority to include a safeguarding target in their Local Area Agreement …."
10. The sequence of events from 11 November 2008 until 1 December 2008
(i) 11 November 2008
"Good question. Orla Delargy went along to the press conference she and Jane Collins (GOSH Chief Exec) gave today. The media were hostile and became more so. Sharon's stance on all this is very robust and in my view a touch more regret and apology would have gone a long way. She was asked today whether she would resign to which she replied categorically 'No'. I have no reason to doubt her competence or her sincerity – and she has been very open and cooperative with me – but her stance today and her position as Chair of the LSCB as well as DCS makes things trickier. And Beverley wants to be sure that Council members are on side and have satisfied themselves there is no action to be taken – that's why she's asked me to speak to the Chief Executive. "
Mr Bell replied saying that he thought that "It did veer a bit too much towards the hard end", but on the other hand it was probably right to be confident. He did suggest that the Chief Executive should be sounded out "because without her full confidence I suspect that Sharon is in a very difficult situation."
(ii) 12 November 2008
"The death of Baby P in Haringey is a very tragic case that will have shocked and appalled the country. It makes all of us question how someone could do such a terrible thing to a child and set out to deceive the very people trying to help. Safeguarding children is Government's top priority and we expect it to be the top priority for local agencies too. In response to Lord Laming's report following the death of Victoria Climbié we introduced fundamental reforms to help keep children safe. Local areas are also now required to review every case where a child is harmed or killed, and neglect or abuse is suspected. We will be considering the serious case review in this case and whether there needs to be a further investigation of child protection procedures and practices among local agencies in Haringey."
"Early in the afternoon David Bell and I had a telephone conversation (on speakerphone) with the Chief Executive …. She told us that the leader of the Council had spoken to Beverley Hughes. Ita O'Donovan said it would be helpful to understand what the Department were proposing. She asked if we were seeking the resignation of the Claimant and we said we were not. We mentioned that one option we were exploring was an inspection led by Ofsted. As far as the Claimant was concerned two options were discussed: that she remained in post with someone working alongside her to provide her with support and challenge, or that she be suspended. We knew very well that it was not within our remit to seek the Claimant's suspension and we certainly did not do so. The employment of the Claimant was a matter for Haringey. However, we asked what the Council's intentions were and whether the Claimant retained the confidence of the Council. The Chief Executive was emphatic in saying that she did. We accepted this and it was therefore agreed that the option of someone working alongside the Claimant to offer support during any inspection would be explored. This led to my having subsequent telephone conversations with John Coughlan. It is incorrect to say that officials pressed for the Claimant's suspension …."
Dr O'Donovan said this:
"On 12 November 2008, David Bell … telephoned me but certainly did not press for SharonShoesmith
's resignation …. At the time I did not feel that DCSF were pressing for the Director's resignation rather they sought confirmation of the Council's position in relation to the Director. I can recall that the Leader of the Council, Councillor George Meehan, shared my view that Ms
Shoesmith
retained the confidence of the Council and agreed with what I had said. Councillor Meehan did not at any time say to me that he had received any telephone call urging that Ms
Shoesmith
be suspended (whether at a meeting with Ms
Shoesmith
present or separately) and I do not believe that this happened. I cannot recall if I mentioned to Ms
Shoesmith
that I had received a call from David Bell. However if I did, I am certain that I did not say that I had received a telephone call about her suspension, since that simply did not occur."
"The relevant portion of Prime Minister's Questions took place just after midday on 12 November 2008. A series of meetings took place between officials and the Secretary of State during the course of the afternoon of 12 November 2008. As these effectively constituted a continuing discussion with the different officials involved, the divisions between these meetings were not always clearly demarcated. Officials were working in the margins of meetings as a result of the iterative discussions with the Secretary of State and to look at the feasibility of the options that were finally agreed upon (namely the request for an urgent JAR and the secondment of John Coughlan)."
"The Secretary of State judged that the issues of public confidence in safeguarding in Haringey and the potential pressure for a public inquiry, which would have been destabilising, required action to be taken with the utmost urgency while also ensuring proper procedures were followed. It was agreed with him that whether or not an inspection of safeguarding and promoting the welfare of children in Haringey should be carried out should be clearly rooted in the serious case review and whether that review pointed to inadequacies in safeguarding.
Officials advised Ministers that the review's findings indicated a number of failings of practice and management by the agencies involved. The initial view was that there was clear evidence that
- Each agency had singly and collectively failed to adhere to the procedures for the proper management of child protection cases set out in Chapter 5 of "Working Together to Safeguard Children" (2006 edition). In particular:
- There was evidence of poor quality practice, management and supervision of staff in all agencies;
- Health professionals appear to have failed to follow the appropriate procedures when there was evidence of a child having suffered non-accidental injuries; and
There was inappropriate use of family friends as temporary carers for Baby P. Our reading of the serious case review suggested that the local authority was responsible for making arrangements for the placement of this child with a family friend and therefore Regulation 38 of the Fostering Services Regulations 2002 should have been followed.
Officials considered these findings very worrying. They felt that there was a clear need to determine whether they simply reflected the state of affairs at the time (and in relation to this one case), or whether they remained pertinent and were indicative of wider and continuing problems with the safeguarding system in Haringey. Officials recommended to Ministers that this could best be determined by some form of inspection as this would be the best means of providing a rigorous, robust and urgent assessment of the effectiveness of safeguarding across all services in the area, in particular the local authority, the NHS and the police.
Officials concluded that the best way of achieving this would be to request Her Majesty's Chief Inspector for Education, Children's Services and Skills … to carry out an urgent JAR of safeguarding and promoting the welfare of children in Haringey, under section 20 of the 2004 Act, working together with the Commission for Healthcare Audit and Inspection ("CHAI") and Her Majesty's Chief Inspector of Constabulary. … Ministers accepted this recommendation and contact was made with HMCI to take this forward."
"In our Written Ministerial Statement this morning we said that, in addition to Lord Laming's independent report on progress on implementing the reforms introduced following the Victoria Climbié Inquiry, we would be considering the Serious Case Review commissioned by Haringey Local Safeguarding Children Board into the tragic death of 'Baby P' and whether there needs to be a further investigation of child protection procedures and practices amongst local agencies in Haringey.
It is important to make clear from the outset and to avoid any confusion, that the Serious Case Review was commissioned under the statutory procedures set out in Working Together to Safeguard Children. We are assured by Haringey that the Serious Case Review was conducted in accordance with the correct procedures, which require the Local Safeguarding Children Board to commission the overview report from an independent author. Ofsted will of course be conducting, as is standard practice, their own evaluation of the Serious Case Review against these procedures.
The full Serious Case Review report was submitted to the Department for Children, Schools and Families this morning.
The Children's Minister, Beverley Hughes and I have today urgently studied these findings.
The review's findings indicate a number of failings of practice and management by the agencies involved.
Having studied the report, there is clear evidence that;
• each agency has singly and collectively failed to adhere to the procedures for the proper management of child protection cases set out in Chapter 5 of Working Together 2006. In particular:
there was evidence of poor quality practice, management and supervision of staff in all agencies; and
health professionals appear to have failed to follow the appropriate procedures when there was evidence of a child having suffered non-accidental injuries.
• there was inappropriate use of family friends as temporary carers for Baby P. Our reading of the Serious Case Review suggests that the local authority was responsible for making arrangements for the placement of this child with a family friend and therefore Regulation 38 of the Fostering Services Regulations 2002 should have been followed.
Further examination of the Serious Case Review may reveal other areas where the implementation of proper procedures could have led to a better outcome for the child.
Clearly such findings in an individual case raise serious concerns about the wider systems and management of services for safeguarding children in Haringey.
In the light of these findings, I have today decided that Ofsted, the Commission for Healthcare Audit and Inspection and the Chief Inspector of Constabulary should carry out an urgent Joint Area Review of safeguarding and promoting the welfare of children in Haringey. I am requesting this under Section 20(1)(b) of the Children Act 2004.
The Review will need to undertake an urgent and thorough inspection of the quality of practice and management of all services which contribute to the effective safeguarding of children in the local area. It will be important to ensure rigorous scrutiny of the quality of practice and decision making by front line workers and their managers, and of the effectiveness of management practice and performance management systems in all relevant agencies.
I would expect the Review to be led and carried out by inspectors with specialist expertise and experience in child protection. Given the importance and urgency of these matters, I request that a first report be submitted to me by 1 December 2008.
In parallel, Beverley Hughes and my officials have today been in contact with Haringey Local Authority. I can announce that while the Joint Area Review undertakes its work, Haringey have agreed that with immediate effect, John Coughlan, Director of Children's Services in Hampshire, will be seconded to work alongside the DCS for Haringey to ensure that proper procedures for safeguarding children are in place and are being properly applied.
The case of Baby P is tragic and appalling. It is our duty to take whatever action is needed to ensure that such a tragedy doesn't happen again, that lessons are learned and that children in Haringey are safe."
"Urgent Joint Area Review of Safeguarding in Haringey
You will be aware of the tragic death of Baby P in Haringey in 2007. We have today urgently studied the findings of the Serious Case Review which examined the circumstances of the baby's death and the role of each of the services involved with the family. The review's findings indicate a number of failings of practice and management by the agencies involved.
Having studied the report over the course of the day, it is our initial view that there is clear evidence that:
- each agency has singly and collectively failed to adhere to the procedures for the proper management of child protection cases set out in Chapter 5 of Working Together 2006. In particular:
- there was evidence of poor quality practice, management and supervision of staff in all agencies; and
- health professionals appear to have failed to follow the appropriate procedures when there was evidence of a child having suffered non-accidental injuries.
- there was inappropriate use of family friends as temporary carers for Baby P. Our reading of the Serious Case Review suggests that the local authority was responsible for making arrangements for the placement of this child with a family friend and therefore Regulation 38 of the Fostering Services Regulations 2002 should have been followed.
Further examination of the Serious Case Review may reveal other examples where implementation of proper procedures could have led to a better outcome for the child. Such findings in an individual case raise serious concerns about the wider systems and management of services for safeguarding children in Haringey.
In the light of these findings, I have today decided that Ofsted, the Commission for Healthcare Audit and Inspection and the Chief Inspector of Constabulary should carry out an urgent Joint Area Review of safeguarding and promoting the welfare of children in Haringey. I am requesting this under Section 20(1)(b) of the Children Act 2004.
The Review will need to undertake an urgent and thorough inspection of the quality of practice and management of all services which contribute to the effective safeguarding of children in the local area. It will be important to ensure rigorous scrutiny of the quality of practice and decision making by front line workers and their managers, and of the effectiveness of management practice and performance management systems in all relevant agencies.
I would expect the Review to be led and carried out by inspectors with specialist expertise and experience in child protection. Given the importance of urgency of these matters, I request that a first report should be submitted to me by 1 December 2008.
I am copying this letter to the Chief Executive of the Commission for Healthcare Audit and Inspection, and the Chief Inspector of Constabulary."
(iii) 13 November 2008
"The fact that Baby P died despite 60 visits from Haringey Social Services is a national disgrace.
I believe that ALL the social workers involved in the case of Baby P, including SharonShoesmith
, Marie Ward, Sylvia Henry and Gillie Christou should be sacked and never allowed to work with vulnerable children again.
I call on the Chief Executive of Haringey Council, Ita O'Donovan, to ensure this.
And I further demand that Beverley Hughes, the Children's Minister, and Ed Balls, the Education Secretary, should apply immediate and sustained pressure to ensure this happens.
I also demand that the doctor involved in Baby P…should also lose her job and not be allowed to treat the public again. And I ask the General Medical Council to ensure that this happens."
"There's a lot of concern being expressed, and considerable anger, about the reaction of people in Haringey, in the authority, to what happened. Do you share that unease at the way they've spoken of the case publicly?"
The Secretary of State's response was as follows:
"I know how difficult it is for social workers around the country, often dealing in very difficult, dangerous situations, often trying to spot problems when there's deceit going on, trying to get health, police, children's and social services working together. So I don't in any way doubt what difficult jobs are being done around the country. But in this case I think that there were problems, and in Haringey of all places, after Victoria Climbié; and what I don't want to do is jump to a particular judgement, I don't want to comment on what was said by one person at a press conference, I want the national inspectors to go in and tell me what needs to be done, and at the same time I have also asked, with the agreement of Haringey, the director of children's services from Hampshire to go in today and be there with the social work team to support them, but also to challenge, to make sure the procedures are being properly followed in Haringey now".
"Well it is really important, first, to say that these are really, really difficult jobs, as you said, but in the end if there are management systemic failures, yes there's got to be accountability, and also there's got to be action to make sure that things are put right. And I have the powers to act but I'm not going to do the easy political thing and seek a headline with an action today, what I want to do is to do it properly and that's why the Inspectors are going in."
(iv) 14-30 November 2008
"I cannot think this is what anyone wanted. It is just a travesty. I am working professionally with all that is being thrown at me. Tonight my brother is flying to Belfast to comfort my 89 year old mother who has press outside her house. She is so shocked she thinks I have killed a child …
Surely this cannot be the way we work with these issues ….
This is not how to safeguard children."
"THE whole nation has been shocked and moved by the tragic and horrific death of Baby P. Thousands of mums and dads, grandparents and children have written to me personally. And the huge strength of feeling across Britain is clear to see from the million plus readers - including many teachers and social workers - who have already signed The Sun's petition. All of us are finding it impossible to understand how adults could commit such acts of evil against a little boy.
And everyone is angry that nobody stepped in to stop this happening.
Social workers, police officers, GPs and all the people in our country who work with children do a tough job, often in really difficult communities. They make difficult judgments every day. And many of them are the unsung heroes of our country.
But where things go badly wrong people want to know why. That's why I immediately sent inspectors into Haringey to find out what went wrong.
Their report will be on my desk by Monday and I will not hesitate to act on what they say.
Nothing I do next week can bring back Baby P or take away the suffering he endured. But we have a duty to do whatever we can to protect children from abuse and make sure we have proper accountability too. I will not rest until we have the very best child protection arrangements in the world."
11. The Ofsted inspection and report
"32. JARs were conducted within the "Every Child Matters" Framework for the Inspection of Children's Services ("the ECM Framework"). This was published by Ofsted in July 2005 pursuant to s.21 CA 2004. The ECM Framework defines the principles to be applied in all relevant inspections. i.e. inspections of children's services. These include JARs and APAs … but also other inspections such as those of fostering and adoption agencies. The ECM Framework explains how relevant inspections will report on the contributions of services to improving five key outcomes for children and young people ("the ECM Outcomes"). These are "being healthy"; "staying safe"; "enjoying and achieving"; "making a positive contribution"; and "achieving economic well-being".
33. A local area's success in contributing to the ECM Outcomes is assessed by reference to 36 Key Judgements ("the Key Judgements"). The Key Judgements are set out in the ECM Framework and are grouped under the ECM Outcomes (i.e. each Outcome has a series of Key Judgements by reference to which it is assessed) ….
34. Service management key judgements also form part of the ECM framework and focus on generic management processes which underpin the delivery of all public services for children and young people. There are four service management key judgements.
35. Prior to April 2007, JARs were concerned with the services provided to all children and young people in a given area. This meant that JAR inspections generally covered all five of the ECM Outcomes, and all 36 of the Key Judgements, although the precise focus of the inspection would be tailored to address any matters that were of particular concern to that area (e.g. teenage pregnancy rates).
36. From April 2007, the JAR methodology was amended to enable inspections to focus more closely on the needs of the most vulnerable children and young people, and on areas of underperformance. To this end they encompassed investigations into three core areas: "safeguarding", "looked after children", and "children and young people with learning difficulties and/or disabilities" plus any additional investigations warranted by particular weaknesses in the area in question. This meant that JAR inspections would always cover those ECM Outcomes and Key Judgements that were relevant to the three core areas, but coverage of the remainder would depend on the particular circumstances. In determining that coverage, regard was had, among other things, to the area's most recent APA and the areas for development identified within it.
37. These changes were reflected in a document published by Ofsted in April 2007 entitled "Joint area review of children's services from April 2007" ("the Published Arrangements"). The document provided "information on the arrangements for joint area reviews from April 2007". These arrangements were made pursuant to s.20(5) CA 2004. At the time of publication, the only JARs that had taken place, or were anticipated, were those that took place under the original JAR programme. Thus the Published Arrangements described the arrangements for those JARs. They did not anticipate the kind of urgent and narrowly focussed JAR that took place in this case.
38. JARs carried out under the original JAR programme took place over a period of approximately five months, from the time of the first set-up meeting with the CSA [children's services authority] to publication of the report. From April 2007, the process and methodology followed in these JARs was as set out in the Published Arrangements."
"APAs were a largely paper-based exercise, drawing on, among other things, performance indicators calculated by reference to data provided by the authority, and the findings of the most recent JAR. A council's Performance Indicators measure its performance against a wide range of targets, e.g. % of initial assessments within 7 working days of referral. Whilst APAs sometimes involved meetings with the authority to clarify issues and check evidence, they did not encompass any fieldwork activity."
"Emerging issues will be discussed with the [DCS] (or equivalent) and other senior officers drawn from the local partnership, when the review team is on site. At the end of the fieldwork headline feedback will be given and within four weeks a draft report will be sent. The director of children's services will be asked to coordinate written comments on the factual accuracy of the JAR report within two weeks of receiving the draft. During this period the lead inspector and deputy lead inspector will visit the local area to meet senior officers, the designated Lead Member and other members of the local strategic partnership to discuss the draft report. Meetings to discuss the findings of the corporate assessment will also be held during the same week. The report will be published about four weeks later, together with the enhanced youth report, normally at the same time as the corporate assessment."
"48. Corporate assessment and JAR teams will coordinate their feedback and reporting arrangements to ensure clarity and consistency. Throughout the fieldwork stage, the team leader will discuss emerging issues with the [DCS] (or equivalent) and other senior managers as appropriate. At the end of the fieldwork, the team leader will provide an oral summary of the main findings to the [DCS] and the designated lead member.
49. Within four weeks of the end of fieldwork, and at the same time as the draft corporate assessment report is sent to the chief executive, a draft report will be sent to the [DCS] (or equivalent) who will be asked to coordinate written comments on its factual accuracy within two weeks.
50. During this two-week period the lead inspector and deputy lead inspector of the JAR team will discuss the draft report with senior officers of the local partnership. Both reports will be issued simultaneously about four weeks later."
"I understood this to mean that I should not, as I sometimes would in a JAR, formally inform the DCS of our emerging hypotheses as to our conclusions and judgements. Nor should I conduct a formal feedback meeting with the DCS and senior managers from partner agencies at the end of the fieldwork stage."
"21. First, the Secretary of State had asked that "a first report should be submitted to [him]". We understood this to mean that the inspection team's findings should be reported directly to the Secretary of State, and should not be disclosed beforehand to anyone outside of the participating inspectorates. This approach was, in our view, justified in view of the sensitivity surrounding the safety of vulnerable children in the Haringey area (arising from the Baby P case), together with the fact that this inspection had been specifically requested by the Secretary of State outside the original JAR programme.
22. A secondary reason was the timescale within which we had decided to conduct the inspection. We anticipated that this would have made it difficult to hold a meaningful oral summary meeting in any event. In particular, since the inspection team would be conducting its fieldwork over one week rather than two, and would at the same time be analysing the documentary evidence (which would have taken place prior to the fieldwork under the ordinary programme), it was unlikely to have properly formulated its provisional conclusions by the end of that week, or to have had sufficient time to prepare for such a meeting.
23. Our third concern was that, if an oral summary meeting was held at the end of the fieldwork at which the inspectors presented their provisional conclusions, there was a risk that those provisional conclusions (whether good or bad) might become public and possibly leaked to the media or even "spun" before we had completed the report and delivered it to the Secretary of State. I am not seeking to suggest that there was any particular reason to think that the specific agencies involved in this inspection might seek to do this, but it has happened in other JARs, where local authorities have sought to manage the response of the press. We did not wish the Secretary of State to hear of the conclusions via the media, and possibly, to hear an inaccurate account."
"The Secretary of State did not prohibit the giving of feedback during the course of the inspection. The Secretary of State did say in his letter to Her Majesty's Chief Inspector, Christine Gilbert, of the 12th November 2008 [see paragraph 143 above] that 'Given the importance and urgency of these matters, I request that a first report should be submitted to me by 1 December 2008'. By this, the Secretary of State indicated that the report should be submitted to him and not to anyone else by that date. Insofar as this may have been interpreted by Ofsted as meaning that there should be no feedback at all to the Claimant or other agencies before submission of the report, then this would have been a misunderstanding."
"I alerted you to the intention of the [Healthcare Commission] to use this inspection as an "initial consideration", possibly leading to further investigation about details of the specific tragedy. In the light of this, as well as recent press and TV coverage, which seems to be suggesting that our inspection will look at the circumstances surrounding the tragedy, it would also be useful to clarify between us what your understanding of the inspection remit is.
The letter from the [Secretary of State] is clear that he has asked for a JAR, albeit one with a specific focus in relation to safeguarding and child protection. I will need to check the letter when I get into the office tomorrow, but I do not think we have been mandated to examine in detail the particular tragic case at this time.
The serious case review is, of course, being evaluated separately at the same time as our inspection, and we will take the initial outcomes of that evaluation into consideration as part of the evidence and to help focus our spotlight where it needs to shine in the [local authority]. However, this is not the same as doing a full investigation into the particular circumstances that led to the tragedy."
"The duty room is located within, and is an integral part of, the contact referral and assessment service. It receives and processes all referrals to the Council's social care services, and carries out any initial assessment work that is required in order to decide what kind of action is required, and whether the provision of services is, or may be, appropriate. That may range from the provision of information about (for example) leisure activities for disabled children to the instigation of court proceedings when a child requires protection."
"13. … Over that weekend and on the 17th and 18th November I was aware of the increased and increasing anxiety among staff and officers in CYPS. I had seen over the weekend, how difficult it was to get data from Framework I. It is a core requirement in safeguarding that what is recorded on a particular case can be understood and appreciated by anyone looking at the case file or Framework I, so that the social care professional knows what has happened on the case and what is required by way of next steps. To understand the record, it is important to be able to see immediately when it was first notified; a chronology of the dealings; and what the recorder is saying about the family at any given time. The record should demonstrate reflective practice, that is to say, an appreciation of the known state of affairs and what should be done to address it. If there are gaps in the records, the person tasked to respond will not know what has happened on the case and will find it difficult to make a judgment about what should happen next. When I saw and heard about the great and glaring gaps in Framework I over that weekend, alarm bells started ringing for me. If the data was incomplete, I could not see how the case management could be adequate and therefore I was concerned that management and supervision could not have been effectively carried out.
14. In addition to these concerns, I was also present during a fraught exchange that weekend (which left a lasting impression on me) between [the Claimant] and her Deputy about delayed responses to correspondence in relation to a case. This case concerned a child in care and the correspondence related to an injury to that child which had not been answered or addressed. I cannot recall the exact length of the delay in providing any response but it was a question of several months since the letter had been received. [The Claimant] was speaking to her Deputy about the case and was very concerned at the delay. She was very upset as was her Deputy. Immediate action was required by [the Claimant] to be taken by the Deputy Director following this exchange. I specifically recall thinking that this might be indicative of wider problems and felt that it did not bode well for the inspection when added to the issue concerning the absence of data on Framework-I.
15. … It was my judgement based on many inspections I have seen, that early signs were that the outcome could be negative and this is what I attempted to convey to [the Claimant] over the course of the weekend and the week that followed. It was difficult to have these conversations with [the Claimant] because her focus was the inspection and seeing that through as she kept telling us. There were moments when I thought she could see how matters were unfolding but then those insights seemed to disappear. I knew she was under great pressure and making a huge effort to concentrate on the task on hand.
16. Indeed I had a discussion with [the Claimant] on the evening of 16 November 2008 where I said that I thought things did not look good and that she needed to think about that. As I recall [the Claimant's] response was that she wanted to focus on getting through the JAR inspection and that it was too soon to come to that conclusion. I disagreed on the basis of what I had seen. I have seen preparations for inspections before and could tell that there was a palpable difference between the high levels of anxiety being exhibited by managers in Children and Families over this inspection and the "normal" level I have seen in most other inspections. When I went home that evening I was seriously concerned about the outcome of the inspection."
"6. I was trying to help in whatever capacity I could and as I did so, two things struck me as glaring issues, and led me to conclude that the inspection was likely to be extremely challenging for us. First, staff were updating Framework [I] in preparation for the Inspection and were preparing excel spreadsheets of our cases for the inspectors. I saw staff sitting in front of whole sections on screen that were empty and although I am not a social care professional, I understand the difference between an exercise involving the tidying up of records, and empty screens. What I saw was the latter and I was really concerned about the scale of the information that was missing from our systems. I spoke to Eve Pelekanos (who was helping with the Framework-[I] records) about the glaring gaps. She and other staff were plainly concerned. She told me that there were significant gaps in the data and that staff were trying to complete them. Even to someone not familiar with the system it was evident that this was more than a simple tidy-up exercise and that something fundamental was wrong. This was not a secret. It was discussed openly over the weekend and staff were in a real state about it. Whilst I do not recall personally discussing it with [the Claimant], I cannot accept that she would have been unaware of it. The scale of the omissions was significant and she was sending more and more staff to the floor to input their records."
7. I was also shown the spreadsheet that we were required to prepare for Ofsted on children's cases. There were extensive gaps in the information fields that we were required to provide. The inspectors were due to arrive the following day and I concluded that our inability to provide full and comprehensive data would not paint a good picture of our safeguarding ability."
"For example, as files were prepared for inspectors, there were omissions evident. When the computerised database for children's cases, Framework-I was being examined to complete the data tables requested, there were gaps in entries."
"There is total distraction about the press interest, the forthcoming Panorama programme and the need to support staff. Although the building … is open to the public, it has been noticeable that there has been no mention of how members of the public are protected from walking past the TV film vans etc in order to access services. There has also, as yet, been no mentioned of how senior managers are ensuring that good quality responses are being made to the needs of vulnerable during this difficult time and of the importance of maintaining services."
"48. … In the course of an inspection, each inspector will compile an individual RoE after each interview or document reading activity. Those individual RoEs are then collated by Ofsted at the end of each day and fed into a single collated RoE for the inspection.
49. The collated RoE for this inspection contains 797 rows, each setting out a brief summary of an individual item of evidence considered in the course of the inspection by each of the inspectorates that contributed to the inspection.
50. The RoE is not a comprehensive record of everything said at each interview, or contained on each file that was reviewed, but a record of the findings that were pertinent to the Key Judgements under consideration. It was compiled for the purpose of assisting the inspection team to formulate overall conclusions arising from the JAR, not the purpose of either anticipating or rebutting the complaints now made by [the Claimant]. As a result it does not set out exactly what was put to her, or any of the other officials interviewed by Ofsted."
1.4 Action is taken to promote children and young people's mental health.
1.5 Looked after children's [LAC's] health needs are addressed.
2.1 Children and young people and their carers are informed about key risks to their safety and how to deal with them.
2.2 Children and young people are provided with a safe environment.
2.3 The incidence of child abuse and neglect is minimised.
2.4 Agencies collaborate to safeguard children according to the requirements of current government practice.
2.5 Services are effective in establishing the identity and whereabouts of all children and young people 0-16.
2.6 Action is taken to avoid children and young people having to be looked after.
2.7 Looked after children live in safe environments and are protected from abuse and exploitation.
2.8 Children and young people with learning difficulties and/or disabilities live in safe environments and are protected from abuse and exploitation.
3.5 Education provision is made for children who do not attend school.
Service management
6.1 Ambition
6.2 Prioritisation
6.3 Capacity
6.4 Performance management
"The nature and quality of dialogue with the DCS was affected by the pressure of the circumstances during the fieldwork week; response to requests for information improved the following week. Daily liaison meetings and one formal interview … were held with the DCS during the fieldwork and regular 'phone contact was maintained at the start of the week beginning 24 November in relation to provision of documentation and information connected to the review. The judgement of [Ms Brown] and [Ms Ryan] was that the intense media pressure, coupled with the presence of the review team meant that by the end of the fieldwork week the responses of the DCS to the team's questions was (sic) less focussed and coherent than they might have been expected and it was therefore sometimes difficult to triangulate evidence. The lack of appointment at the start of fieldwork of one link officer by the council (several people were charged with aspects of this role) meant that there were delays in receiving documents. Communication during the week beginning 24 November improved and documents were provided promptly."
"A central element of our method in conducting such a JAR is 'triangulation'. By that method we seek to corroborate evidence with more than one further item of evidence. As part of the process of triangulation we seek to raise the issues that arise, for example, out of the documents with staff at appropriate levels in order to test the accuracy of the picture emerging from the documents, or from other interviews."
"20. We saw such interviews as an opportunity to explore whether the interviewee's own perception of the circumstances was consistent with what we had read and heard from others. To that end, we sought to encourage a very open discussion. We would not, for example, say "I put it to you that ..." in the way a lawyer might. Rather, we would explain the issues that we had been considering and/or the concerns that we had identified and say "tell us what you think works well, what you think the challenges are, and what issues you think need to be resolved". In this way, we would allow the interviewee the opportunity to speak freely about areas of good and poor performance, and to comment on concerns which we raised as a result of the evidence gathered so far.
21. We encourage such discussion by conducting the interviews on a confidential basis. Interviewees are assured that individual sources will not be named in the report. (As is made clear, the only exception to this confidentiality is if the subject of the interview tells the inspector about something dangerous to a child or illegal, where it may be necessary for appropriate steps to be taken, for example, to protect the child as a matter of urgency.) The gist of concerns that are raised is, however, put to managers …. Furthermore, in practice, it is typical in inspections for those individuals who are interviewed to communicate the gist of Ofsted's concerns with their senior managers themselves.
22. In the course of the interview process, the issues are, however, raised in different ways at different levels of the organisation. We typically do not seek to discuss the details of individual cases with senior management or elected members (although … on this occasion we did discuss individual cases both with [the Claimant] and her Deputy …). We take up high level issues and concerns with senior managers and elected members …."
"Pat [O'Brien] and I were very concerned about what we had found in relation to the cases we inspected during the duty room inspection. We wanted to feed back those concerns to managers in order to alert them to the problems we had encountered and to enable them to take the necessary action to ensure that those children were adequately safeguarded, It also gave them an opportunity to consider our concerns and to direct us to additional evidence where it existed to modify our understanding."
"Whilst we would occasionally interview individual social workers about specific cases in the course of a JAR, this was not always the case. Whether or not it is appropriate to do so depends on the nature of the issues that arise from our scrutiny of the cases selected for tracking …. In this case … the concerns that arose were extremely serious, and fundamental to the way that safeguarding systems were operating in Haringey. In those circumstances, our principal concern was not to explore the individual cases in greater detail, but to discuss the broader themes that they illustrated in order to identify the extent to which managers and staff were aware of those themes and what, if any, action was being taken to address them. We did this both through the case-tracking feedback meeting, and during a focus group with frontline social workers the same day …. In fact, the people we spoke to confirmed the themes that we had identified from the individual cases."
"I came away from that further meeting aware that we had problems but knowing that these were not unique to Haringey, as has subsequently been confirmed in the most recent Laming report where a number of the issues raised at this meeting and in the inspection report are acknowledged to be country-wide issues."
"The question whether the problems were unique was not the point, and was not discussed at this meeting. The issue was the quality of safeguarding in Haringey. … the scale of the failings that we found during the case-tracking exercise was unique in my experience."
"… where serious mistakes are made, there must be accountability, and I will not hesitate to act on the findings of the inquiry into what went wrong in Haringey and of Lord Laming's review. Our responsibility, working together, is to ensure that children are safe and protected from abuse, and we will not rest until we have the very best possible child protection arrangements to safeguard out most vulnerable children in every part of the country."
"Christine remains in no doubt as to what Ofsted needs to do with the inspection. She confirmed that there will be an examination of some of the papers relating to Baby P. Without quite saying it, I got the distinct sense that there were wider and substantial concerns that had already been identified in Haringey. I can't help feeling that the weight of negative evidence will be so great that Sharon will be compelled to resign or the Council will force her to go. All of this is pure speculation on my part and should not be shared with Ministers at this point."
"This interview focussed upon capacity and the cross cut to performance management …. DDCS very distressed, verging on tearful on numerous occasions but in response to my question decided to proceed with interview as "things must carry on". She acknowledged that attracting permanent staff had been a persistent issue and that the service has increasingly had to rely on agency staff some of whom are long serving. She is well aware that audits have revealed competency issues and although some action has been taken against some staff who are unfit to practice (two she thinks), others are still employed (no details of any increased supervisory/monitoring offered) as the recent high profile case has meant that replacement staff are not in place. Recent interviews for new permanent team managers and social workers cancelled when all applicants withdrew or failed to show up. Issue here is that DDCS is condoning the retention of staff who she has decided to release or commence competency processes without being able to explicit about the actions she is taking to oversee their practice."
"46. At the … meeting (on the Thursday) [the Claimant] reiterated that she had no issues to raise about the inspection but did mention that the Chief Executive was considering whether to complain about the process.
47. Also during the … meeting, [the Claimant] indicated that she knew the report findings were unlikely to be positive and she asked that her name not be mentioned in the report. I did not comment on this request other than to explain that JAR reports do not generally name individuals."
"She was in tears. She was very distressed and clearly understood that our findings were unlikely to be favourable. She said that, whilst she had felt she had "robust oversight" of performance issues, she now realised that the Performance Indicator data did not give the whole picture …. She asked me what more she could have done to make herself aware of the issues of concern in children's services. We discussed the need for members to challenge and scrutinise information provided by council officers at all times, and to obtain information from a range of sources, such as children and their families, rather than to rely exclusively on information provided by council officers."
"245. I interviewed the Chief Executive and Leader of the Council to try to identify what it was that they knew about the reality of the functioning of HCCS as we had found it to be and to identify the strength of any challenge they might pose to the practices of the HCCS. At the outset of the interview, the CE and Leader said that they were confident that they were advised of issues within children's social care services through the management line …. It emerged very quickly, however, that this was not in fact that case.
246. I highlighted a number of concerns that the inspection team had identified, in particular in relation to quality of practice, in particular in respect of the reliability of performance indicator data and the quality of child protection practice that had arisen from our review of the files. I made clear during this interview that what we had found did not match the positive picture that appeared from Haringey's Performance Indicators.
247. This appeared to confirm the Leader's worst fears and caused him to become quite upset. He explained that, whilst he had tried to challenge Performance Indicator information by asking questions as to the underlying quality of practice, he had accepted too readily the reassurances provided to him by HCCS managers (in particular the Deputy Director). The Leader felt that he should have been able to uncover the weaknesses that the inspection team had identified, but had failed to do so. I agree with that judgement. Earlier in the week, [the Claimant] had described the Leader as "heartbroken" and this appeared to me to be quite apt. The CE also became tearful at one point during this interview."
"I would like to emphasise that we did not go to Haringey … expecting to find poor practice. We were not there to prove that services were inadequate. Given that more than a year had elapsed since the previous JAR we would have expected practice to have improved. The evidence was, however, clear and overwhelming that safeguarding practice was inadequate."
" … Ofsted did not regard the judgements reached in this case as marginal, or finely balanced. In this case, the evidence of inadequate safeguarding practice was overwhelmingly strong. The quality of practice that we witnessed in Haringey ranks as the worst that I have seen in the 15 JARs I have undertaken. Usually in an inspection one sees files where good and safe practice is demonstrated. We did not see such practice in the overall assessment and care planning for children and young people in any of the 63 individual case files that we reviewed and found only a single example of good practice …".
"Thank you for our helpful telephone conversation this morning. As discussed, it is unlikely that the inspection team will need to come back on site this week, as we are now further considering the documentation and beginning to formulate our report…
I am aware that you are sending me some further documentation via e-mail today, and I thank you for that in advance. I also attach written confirmation of the list of further information that we are requesting, and which we discussed earlier. If there is anything on the list which proves problematic to e-mail, do please just let me know. As we agreed, I am happy for all the information to be e-mailed to me, and I can then distribute it as required to my inspectors.
Thank you very much indeed for all your help with this…
Take good care…. "
"254. During the course of the following week, [Ms Ryan] and I were engaged in drafting the Report. We received comments from senior Ofsted managers for the purposes of quality assurance … and also senior representatives of the Healthcare Commission and HMIC. I should emphasise, however, that the final draft Report reflected fully the findings and views of the inspection team. I wrote every word of it. I was never under any pressure from my managers to reach any particular conclusions or change any of the conclusions or judgements that we had reached.
255. When we had first arrived at HCCS, [the Claimant] had suggested to me that the inspection team might be under political pressure. I assured her that this was not the case. I believe that we acted at all times with the utmost objectivity and independence."
"During the course of 27th November, arrangements for receiving the report were finalised directly between Christine Gilbert and David Bell. At the Department's request, it was agreed that a draft would be provided to the Department in advance, on the evening of Sunday 30th November 2008. Ofsted would then brief the Secretary of State at 9 a.m. on 1st December 2008. There would then be a separate meeting between Ofsted and Haringey to enable Ofsted to feed back the findings of the JAR and to make any suggested changes. Once the report was finalised, there would be a meeting between Ministers and Haringey to discuss the report and the Secretary of State's proposed action. It was agreed on 28th November that, for reasons of practicality, these scheduled meetings should take place at Sanctuary Buildings."
"… The issue of who would attend the meetings to be held with Ofsted and the Secretary of State at the DCSF on 1 December 2008 was decided by me in terms of who needed to state the Council position. I regarded that role as falling to me as the Chief Executive in relation to the meeting with the Secretary of State. I considered that the meeting with Ofsted was likely to be a meeting to check the accuracy of the report, rather than an exercise involving a line by line assessment of its validity. I decided that it was not necessary or appropriate for [the Claimant] to be present. I took two senior officers for that purpose, one from CYPS and the Council's link officer for the inspection. Both officers had been closely involved in the inspection and were familiar with matters that had been raised in questions and interviews during its conduct. They did not attend the meeting with the Secretary of State. I would add that I was genuinely worried about [the Claimant's] health and safety and had already advised her to remain outside London on 1 December. I judged that attending such a meeting was likely to be highly emotional and very stressful for her as head of the safeguarding service. Furthermore, I was concerned about the tremendous pressure she seemed already to be under and what I had perceived as her variable ability to concentrate during this very difficult period."
"Dear Heather,
Forgive me for contacting you but if it is at all possible please can any national humiliation of me be avoided if at all possible. I am afraid of any more media. I will be very grateful. If there is any possibility of anything positive I would also be very grateful. You don't need to send any reply. I understand. I just need to ask you. Thank you.
Sharon."
Ms Brown said this suggested to her that the Claimant expected the report to contain largely negative findings. Mr Maurici has suggested that it has been very unfair to rely upon that text message against the background of what had occurred that day. Doubtless that would be a matter of debate amongst those who have knowledge of this case. It is not something upon which I express any view. However, since this is a judgment that may be read widely, it is right that the Claimant's account of how the text message came to be sent is recorded for anyone reading the judgment to see:
"There were press outside my flat when I got home (I came past in a cab) and so I had to wait in a nearby café until late before going in. During that wait I did send the text message to Ms Brown …. It was sent late in the evening from the café where I had sought refuge until the press had left my flat. I was exhausted and had endured the delivery of a petition said to be signed by 1.4 million people to Downing Street who wanted rid of me. I had been chased that morning by TV cameras and it was then that the most often used piece of film of me was taken. By then I had had a death threat and police secured my windows and gave me advice about my safety. That threat had focussed on my daughter and she had left London. I had extra smoke alarms fitted above the door to my flat and a cage lined in foil fixed over the letterbox to catch any burning material that might be put through it. The police set up an arrangement whereby I could get an instant police response if I needed it. I was being recognised on the tube and was photographed on the bus. Given the context in which the inspection took place I expected the report to contain some criticism but I knew that it would not mention me or focus on me or anyone else because JAR reports did not mention individuals as a rule and Phil Pullen had told me that this report would be no exception …. I was trying to elicit some kind of response by sending the text message. Although by now I was very afraid for my safety on London's streets I was coping well with the pressure. I am a very resilient person …."
"32. In the event, the drafting process continued over the weekend of 29 and 30 November, during which time I reviewed the report for final proofing and editing of the report, including the incorporation of further input from HMIC and the Healthcare Commission. I should explain that the editing did not involve material changes to judgements but was simply ensuring consistency of style and dealing with final comments from the Healthcare Commission and HMIC and to allow for Christine's final approval.
33. The final draft was completed at around 4pm on Sunday 30 November, when I sent it to Christine. I understand that she forwarded it to the Secretary of State's Private Secretary at around 5pm after she had approved it."
"Officials and Ministers were stunned by how damning and critical the report was. The … findings clearly demonstrated that Haringey's performance of their safeguarding responsibilities was inadequate and Ministers were advised by officials that the threshold for intervention in accordance with section 497A of the 2004 Act was satisfied. Ministers and officials were struck by the very stark nature of the findings and the depth and breadth of the failings they highlighted ….
…
These findings from Ofsted showed systemic weaknesses in the quality of safeguarding practice, supervision, management and inter-agency working. Ministers and officials were left in no doubt about the scale of the failure and the importance of taking swift, decisive action to address a very serious situation within Haringey."
Summary judgement
7. This inspection has identified a number of serious concerns in relation to safeguarding of children and young people in Haringey. The contribution of local services to improving outcomes for children and young people at risk or requiring safeguarding is inadequate and needs urgent and sustained attention.
Main findings
The main findings of this inspection, described below, point to significant weakness in safeguarding and child protection arrangements in Haringey. They also show that the arrangements for the leadership and management of safeguarding by the local authority and partner agencies in Haringey are inadequate.
- There is insufficient strategic leadership and management oversight of safeguarding of children and young people from Haringey by elected members, senior officers and others within the strategic partnership.
- There is a managerial failure to ensure full compliance with some requirements of the inquiry into the death of Victoria Climbie, such as the lack of written feedback to those making referrals to social care services.
- The local safeguarding children board (LSCB) fails to provide sufficient challenge to its member agencies. This is further compounded by the lack of an independent chairperson.
- Social care, health and police authorities do not communicate and collaborate routinely and consistently to ensure effective assessment, planning and review of cases of vulnerable children and young people.
- Too often assessments of children and young people, in all agencies, fail to identify those who are at immediate risk of harm and to address their needs.
- The quality of front line practice across all agencies is inconsistent and not effectively monitored by line managers.
- Child protection plans are generally poor.
- Arrangements for scrutinising performance across the council and the partnership are insufficiently developed and fail to provide systematic support and appropriate challenge to both managers and practitioners.
- The standard of record keeping on case files across all agencies is inconsistent and often poor.
- There is too much reliance on quantitative data to measure social care, health, and police performance, without sufficiently robust analysis of the underlying quality of service provision and practice.
Recommendations
The Department for Children, Schools and Families should:
- provide immediate appropriate support and challenge to the local authority to ensure that comprehensive and effective safeguarding arrangements for children and young people are established.
The Local Authority, working with its partners and in particular health and the police, should:
- improve governance of safeguarding arrangements. In particular, they should ensure full compliance with the guidance contained within 'Working Together to Safeguard Children' 2006 and embed the London protocol for inter-agency working to improve outcomes for children and young people.
- establish more secure assessment and earlier intervention strategies which ensure that, in all cases where concerns about children are identified, agencies can intervene and assess risks of significant harm to children in a timely manner.
- establish more systematic monitoring of the quality of practice.
- ensure that managers and staff at all levels are accountable for casework decisions, and that they draw as necessary on the expertise of partner agencies to inform the decision making process.
- take steps to integrate individual service processes and systems across all agencies more effectively, so that all children and young people are safeguarded.
- assure the competence of leadership and management in all areas of children's services and develop clear and effective accountability structures.
- establish rigorous arrangements for management of performance across all agencies, which ensure that the quality of practice is evaluated and reported regularly and reliably, and that accountability for each action is defined and monitored.
- make explicit to all staff and elected members the expectations and standards required of front line child protection practice.
- establish rigorous procedures to audit and monitor the quality of case files across all partner agencies and ensure processes are in place to deliver improvement.
- establish clear procedures and protocols for communication and collaboration between social care, health and police services to support safeguarding of children, and ensure that these are adhered to.
- assure the competence of service and team managers in conducting rigorous and evaluative supervision and monitoring of safeguarding practice.
- appoint an independent chairperson to the local safeguarding children board (LSCB).
Whilst not a mandatory requirement, it would be good practice for the Local Authority to:
- ensure that all elected members have CRB checks.
- ensure that all elected members undertake safeguarding training.
(iv) 1 December
"(a) pursuant to [section 497A(4B)] … he directs that:
(i) the Council shall appoint until 31 December 2008 and on such terms and conditions as the Secretary of State agrees John Coughlan as their Director of Children's Services, in accordance with section 18(1) of the Children Act 2004 for the purpose of the functions conferred on or exercisable by the Council which are specified in section 18(2) of the Children Act 2004; and
(ii) the Council shall appoint Libby Blake as Mr Coughlan's Deputy on such terms and conditions as the Secretary of State agrees; and
(b) pursuant to section 7A of the Local Authority Social Services Act 1970 Act, … that the Council shall appoint Graham Badman to chair the LSCB."
"In their summary judgement, the inspectors say that there [is] … insufficient management oversight of the Assistant Director of Children's Services by the Director of Children's Services and Chief Executive."
"Overall, the Inspectors' findings are … devastating. Their report sets out detailed recommendations, all of which must now be accepted in full. And having studied their report, I have decided to take immediate action. My first priority is to put in place a new leadership and management team in Haringey children's services to ensure that vulnerable children in the borough are properly protected. I have directed Haringey Council to appoint John Coughlan as Director of Children's Services. Haringey Council will now remove the current Director of Children's Services from her post with immediate effect.
Mr Coughlan is one of the most highly respected Directors of Children's Services in the country - and I am grateful that he has agreed to extend his secondment to Haringey to manage the transition to new management. My direction takes place under section 497A(4B) of the Education Act 1996. It takes immediate effect and will last until 31 December 2008.
I will identify a new Director of Children's Services to take up post from 1 January 2009 - and it is my intention to direct this appointment too."
"Q. First of all, can you confirm that SharonShoesmith
will not be given a payoff with public money? Could you also say what you intend to do or what recommendations you have for the social workers who were involved in this case, Maria Ward, Sylvia Henry and Gillie Christou? It's quite clear from this report you've just published that there were serious failings on the ground as well as in the management so surely they have some questions to answer about their actions, and should they be carrying on working with children? And thirdly, do you recognise the force of the Sun campaign which led to 1.3 million signatures handed in to you and the Prime Minister last week?
A. Well I undoubtedly recognise the force of the petition from your newspaper, and right across the country many, many people, millions of people have been affected, and millions of people have been affected, including teachers, including social workers, mums and dads, grandparents, children themselves, that they have studied and seen and seen in the newspapers the reality of this tragedy. And, you know, as I'm sure all of us understand, the passage of time does not make it any easier to bear or easier to read about; it's, if anything, more upsetting. As I've said, the result of my direction today to Haringey is that the director of children's services will be removed immediately from her post. Her employment relationship is with Haringey and so the normal employment and legal procedures will take place; but I have to say, I think most people will look at this report, look at the clear evidence of management failures and say that this kind of failure should not be rewarded with compensation or payoffs to … in the way in which you suggest. That's a matter for Haringey. I have to say I would be astonished if elected members in Haringey chose to do that, but it's a matter for them."
"Q. First of all, I wanted to ask you, were you surprised that SharonShoesmith
didn't offer her resignation given the damning findings of Ofsted? And secondly, given that Lord Laming introduced many of the structures that we are now living with today, is he really the right person to be conducting a review of how those services are not working?
A. Well, SharonShoesmith
will only now be seeing the detailed inspectors' report, the inspectors' report was submitted to me at nine o'clock and then to the leadership of Haringey Council this morning, and I then had a meeting with Haringey Council after that. So the director of children's services will only now be seeing the detail of this report which, as I said, is devastating about management … sorry …
Q. Why didn't SharonShoesmith
resign?
A. That is not a question that I can answer, and nor can I answer why employees of Haringey have made the decisions they've made in the last couple of weeks. What I decided to do, and I've always been clear about his, that I would go through … do it properly, I'd get the inspectors in, I would look at their findings and then I would act; and I have acted to remove the director of children's services from her post today and appoint newer leadership, both at a director of children's services and, through Graham Badman as the effective chair of the local safeguarding board; so there's been a root and branch change in the management of children's services in Haringey. But that's not really a question that I can answer today."
"Q. You mentioned the powers that you acted under, but is there any precedent for a central Government minister sacking a local government officer, and was there any reason why you have to do it rather than leave it to Haringey – was it that they were dragging their feet?
A. Well, I have not sacked anybody. I have removed the … that official from her post, from her statutory responsibilities, and I've directed the replacement of a new person to go in and take over those responsibilities. The employment relationship, as you know, is for Haringey, and that's something I know they will considering this afternoon and immediately. There is a precedent for this to happen. But these are obviously powers which you only use in the last resort, and you use them with care because they are strong powers. But in this case I judged it was the right thing to do. You'll know that there have been a number of interventions in different local authorities around the country over the past decade or so. I don't know that there's been one done in this way. I'm confident that we've never, ever directed a change in the local safeguarding board chair, the … effectively the chair of the board, if you like. And to be honest, having seen this report today, independent of any personnel changes which have been made, I think that I would have decided that intervention and direction now and in the coming months was the right thing to do in Haringey. But, you know, in terms of particular people, we are where we are.
Q. Sorry to, just to clarify: what's the difference between sacking and removing someone from their job?
A. Well, the employment … I don't employ the director of children's services in Haringey; Haringey Council, which is a statutory body, they employ that lady, MrsShoesmith
, and it is for Haringey now to decide what employment and legal process to follow. It's not my role; I don't have the power to do that. But what I do have the power to do is intervene and remove somebody who I judge not fit to hold an office, to be removed from office, and that's what I have done, and I have directed a new director of children's services to go in. It's a matter for Haringey to decide how to then take that forward, and I know that's something that they will be looking at as we speak."
"78. The Secretary of State judged that the issues of public confidence in safeguarding in Haringey required action to be taken with the utmost urgency. This is explicitly set out in the Secretary of State's letter to Haringey on 1st December, namely "given the seriousness of the report and the need to restore public confidence in Haringey's children's services, it is clear that a robust solution needs to be implemented urgently in Haringey. I have concluded this must involve appointing a new statutory post holder of Director of Children's Services." The level of public concern following the verdict in the trial of Baby P on 11th November 2008 was overwhelming and unprecedented. This went far beyond the saturation coverage in the media over many weeks. While this undoubtedly fuelled public reaction, it also very clearly reflected the public's deeply felt shock and anger at what had taken place in Haringey.
79. This public concern manifested itself not only in the headlines of newspapers (of all kinds) but also in around 1,400 letters and e-mails received by No. 10 and the Department between 11th November and 1st December 2008 alone. In addition, there were an unusual number of calls for Parliamentary debates and numerous Parliamentary Questions were asked. There were calls from Opposition politicians and commentators for a public inquiry as well as calls for dismissals and resignations. There were also clear public safety issues. Media frenzy there certainly was but this was mirrored by public outrage, at times manifested in a 'lynch mob' mentality with social workers up and down the country – quite unconnected with Haringey – being subject to random abuse and in extreme cases physical threats. Frontline social workers, on whom children at risk of harm depend day to day, were being vilified and scapegoated. Ministers and officials believed that there was an absolute imperative to restore public confidence quickly before the wider system became destabilised with the safety of more children put under threat as a result. It was to meet this imperative that the Secretary of State made his various statements to Parliament and to the press, and gave numerous interviews to the media. He also wrote an article which was published in the Sun on 27th November 2008. The Sun had been particularly active in voicing public concern, reflected in the petition of 26th November, so it was natural that the Secretary of State should try to calm the public outcry by writing in the same paper. However, it is certainly not true that the Secretary of State's decision to make his Direction of 1st December was a response to the calls from that paper, as alleged at paragraph 47 of the Claimant's grounds.
…
81. The findings of the JAR were unequivocal and compounded earlier concerns. It was essential to act immediately on its findings. Swift, decisive action was needed to protect children in Haringey but also, importantly, to prevent a general destabilisation of the child protection system. This was a very real danger ….
82. Given the strong public criticism of social workers following the Baby P trial, and, with recruitment and retention issues in the sector already severe, there was a very real danger of the entire system being propelled into crisis through a wider undermining of social workers' confidence and morale which could have exacerbated existing recruitment and retention difficulties. There was also the threat – to some extent realised – of spiralling numbers of referrals as the system tipped in to risk-averse behaviour. It was crucial, not just for the safety of children in Haringey, but for the protection of children across the country, to act quickly."
"We are deeply sorry we are that we did not do more to protect Baby Peter. We have a duty to protect children and on this occasion we failed. I have found it hard to understand how anyone could do such terrible things to a defenceless baby.
The council takes full responsibility for all the failings in our service. We acknowledge our duty to protect children in Haringey and the failings in our service identified in the report.
We welcome the support which is being offered by Government in terms of the intervention announced by the Secretary of State earlier today to help us make the improvements which we understand are so necessary.
We need to make changes to the ways we work and we need to make changes to the ways we work in partnership. We will work with all local partners to support improvement.
We can't change what happened. This report confirms that we could have done more to protect Baby Peter. We can change things for the future. The best tribute we can now give him is to take action immediately, make the changes we need and start to rebuild confidence in our child protection service."
"I want to say how truly sorry I am that this young child (Baby Peter) has lost his life. I know we did not do enough to protect him and that is and going to be something I will never forget. There has been personal and collective anguish and sorrow from staff across the Council.
I offer my sincere apology and sympathy to his father and family.
I welcome the report from Inspectors who recently conducted a Joint Area Review on Safeguarding Children in Haringey, as I know my colleagues within the Police, Primary Care Trust and Great Ormond Street Hospital do and we are committed to doing everything we can to improve how we work and how we work together.
The report which we have just received will be supported by the appointment of a new Director of Children's' Services. Our plans for longer term improvement will be reported to the Council along with the detailed actions we are committed to delivering.
I can tell you of the actions that are being taken immediately to improve the quality of services for safeguarding children within the Borough:
We were directed by the Secretary of State to remove the current director of Children and Young People's Services from her statutory duty. We suspended her immediately and will follow the legal process as speedily as possible.
We have suspended a number of other staff, pending investigation following the Ofsted report. We will follow the process as speedily as the law allows.
The position of other staff will be subject to review in the light of today's report. The review will be carried out by John Coughlan, the new Director of the Children and Young People's service. I am pleased that the Secretary of State directs that the interim Deputy Director should be confirmed in post.
As the minister outlined, an independent Chair of the Local Children's Safeguarding Board has been appointed to ensure independent challenge and scrutiny of the Council and its partners' services and specifically with regard to serious case reviews.
The first meeting of the board will consider the report and look at changes we need to make individually and collectively as a result of the report.
In the sixteen months since Baby Peter died Haringey's social workers have continued to do their best, often in very difficult circumstances, to protect vulnerable children in our community. Despite the pressure of the last few months and weeks, they continue to put the interests of those children first.
On 1 December the Leader of the Council, Councillor George Meehan and the cabinet member for children and young people resigned from their posts."
(v) 2 December 2008 – 12 January 2009
"I write to confirm the decision to suspend you from your duties with effect from Monday, 1 December 2008. The suspension will be on normal contractual pay and it was operate until there has been time to fully investigate the effect of the Direction of the Secretary of State made on 1 December 2008 in relation to the position you hold and the allegation that the relationship of trust and confidence in you has been fundamentally breached following receipt of the report of the Joint Area Review which sets out failures in the effectiveness of the management of child protection services at the most senior level in the Council."
"I am happy to send this letter by post if you wish, but due to urgency I am e-mailing you directly.
I am requesting some additional information so that we can move quickly to resolution on all the issues raised in the Secretary of State's Direction.
The Council has fully accepted the findings and recommendations of the Joint Area Review. The authority also recognises that the findings set out in the report are, of necessity, drafted in a summary form. However, in the main this means that these findings are presented without the detailed supporting findings from the evidence gathered during the inspection itself.
John Coughlan has been charged by the Secretary of State to consider and address any immediate staffing issues raised by the Baby P case. The Council is also giving immediate consideration to the employment aspects of the directions issued by the Secretary of State as well as the findings of the report of the review. You will be aware from the statements issued yesterday by the Council that it has suspended three senior members of staff in its Children and Young People's Service, including the Director.
It would assist both Mr Coughlan and the Council in taking urgent action on these matters for more information to be made available on critical aspects of the report and its findings concerning the operation of Haringey Council's child safeguarding services, particularly their management in the this context, I write to request that the detailed findings supporting the content of the main findings in paragraph 7, paragraphs 35 to 44 and paragraph 47 be made available so that consideration can be given to them in the course of the actions currently being taken in respect of staff.
I look forward to hearing from you as soon as is reasonably possible."
"The effect of the Direction of the Secretary of State made on 1 December 2008 in relation to the position you hold and the allegation that the relationship of trust and confidence in you has been fundamentally breached following receipt of the report of the Joint Area Review which sets out failures in the effectiveness of the management of child protection services at the most senior level within the Council."
The letter also contained this paragraph:
"It is normal practice to afford 10 working days notice of such meetings. The exceptional circumstances of the public interest surrounding your position makes such notice difficult. I believe it is in the interest of both parties to expedite matters. I am proposing therefore to make a payment in lieu of such notice to you on the basis of a value of 10 working days salary."
"Heather Brown … has passed me your e-mail of 3 December 2008 for consideration.
Clearly, you might find it helpful to be given more details about what the inspection found and, therefore, I am happy to agree to a meeting between John Coughlan, Heather and perhaps Phil Pullen, Assistant Divisional Manager, Local Services Inspection, who helped to quality assure the inspection. I would be grateful if you could confirm who else you would want to have at the meeting in advance. Heather or Phil will then contact John Coughlan to make the necessary arrangements.
I am sure you will understand that, although Heather will be able to provide more detail around the findings, she will not be able to share the evidence base directly. This is in line with our usual practice.
I would like to take this opportunity to wish you well with the work you are not undertaking to address the important issues identified in the report."
i) The hearing commenced at 9am. There is no evidence that the Claimant was asked if she had had a proper opportunity to prepare for the hearing and the hearing proceeded straight into a consideration of the matters put before it by Mr Young. There was a break of 35 minutes from 11.15 until 11.50. The Panel finished hearing the evidence and argument at 12.40, retired to consider its decision at 12.50 and gave its decision some time after 2pm, having given the Claimant the opportunity to leave in advance if she wished to. She did indeed do so.
ii) Mr Young, who presented the management's side, took his letter of 3 December (see paragraph 322 above) as setting out the allegation the Claimant had to meet.
iii) The Claimant made a detailed response to the report to the extent that it was possible without having the underlying evidence upon which it was based to which to refer. There is an issue about the extent to which she accepted criticisms in the report and since that issue is one upon which another tribunal may have to reach a conclusion, I will express no view save to say that it is plain that she did not agree with a number of the parts of the report, but did accept others. She complained to the Panel about the reference to the 'Baby P case' because her (correct) understanding was that it was not to be dealt with in the Ofsted review although, as indicated previously, reference to it did become part of the reporting process.
iv) She endeavoured to put the criticisms of the SCR in 'the Baby P case' in the context of the proposition that 40% of SCRs thus far had been categorised as "inadequate".
"This is to inform you that today SharonShoesmith
was dismissed from Haringey Council with immediate effect. The decision was taken by a panel of councillors. Ms
Shoesmith
will not be returning to work in Haringey. She will not receive any compensation package, nor will she receive any payment in lieu of notice.
The is because of the Secretary of State's direction on 1 December removing SharonShoesmith
from her statutory role and appointing John Coughlan to that role, and because of the content of the Joint Area Review which raised serious concerns about the management of safeguarding children services in Haringey.
This is an exceptional procedure which reflects the unusual circumstances of the last few weeks.
Measures have been taken to bring additional resources to Haringey and we are working to implement all the recommendations of the Joint Area Review.
Once again I want to thank all staff for their commitment to the job at hand, which has been exemplary. We are proud of how steadily people have put their minds to providing the best work they can, across the council. There is a strong sense of commitment to our services and the responsibilities we have to our residents and partners …."
"I write to confirm the outcome of the meeting that was held on 8th December 2008 at which you were present and represented by Richard Penn.
At the meeting a panel of elected Members considered the following matter;
The effect of the Direction of the Secretary of State made on 1 December 2008 in relation to the position you hold and the allegation that the relationship of trust and confidence in you has been fundamentally breached following receipt of the report of the Joint Area Review which sets out failures in the effectiveness of the management of child protection services at the most senior level within the Council.
The Members carefully considered the issues surrounding your employment with the Council including the matters raised by yourself and Richard Penn on your behalf at the meeting. The Panel made the following decision:
1. The Panel found that the effect of the Direction of the Secretary of State on 1 December 2008, which it had no reason to suppose was not valid and lawful, was to remove responsibility for all duties and functions for your post as Director of Children and Young People's Service.
The Panel further found that no significant elements of that post could be exercised outside of the effect of that direction.
2. The Panel found that the relationship of trust and confidence in you had been fundamentally breached as a consequence of the summary judgement and main findings of the Joint Area Review which identified a catalogue of shortcomings across the service. In particular the Panel had regard to the lack of effective supervision and management within the service e.g. child protection planning and assessment. The Panel noted that a number of key failures were accepted by you.
3. The Panel took no account of the statement by the Chief Executive at the Press Conference on 1st December 2008 in reaching its decision.
4. The Panel noted that the Joint Area Review recognised substantial failings within other agencies but were not able to comment on these as they were not within its remit.
Therefore the decision of the Panel is that sufficient evidence was presented, given its findings in 1-4 above, to justify summary dismissal with immediate effect.
…."
"SharonShoesmith
has been dismissed from Haringey Council with immediate effect.
The decision was taken on Monday by a panel of councillors.
MsShoesmith
will not be returning to work in Haringey. She will not receive any compensation package. She will not receive any payment in lieu of notice.
This is because of the Secretary of State's direction on 1 December removing MsShoesmith
from her statutory role and appointing John Coughlan to that role, and because of the content of the Joint Area Review of safeguarding children in Haringey, published on the same day, which highlighted the inadequate management of arrangements for safeguarding children. The content of the report led to a fundamental loss of trust and confidence in Ms
Shoesmith."
"It is … very surprising to learn that not only has Sharon been dismissed with no compensation for her previous good work, but with not even the statutory three month notice period.
We believed that Haringey as a Council was more principled than this. We believed that you would adhere to fair employment practice. We believed that you had a duty of care to employees who have dedicated years of their working life to Haringey and its services. We fear for the recruitment of any quality staff for Haringey for the foreseeable future."
"You have invited the Panel to consider whether we accept that your legal submissions are correct. As a dismissal appeal panel all of the Members are experienced in dealing with factual arguments. We also appreciate the fact that you have made your legal submission in an accessible way. We understand your submission to be a criticism of the legality of the Secretary of State's direction however, we consider that such arguments are more appropriate for a court of law, not a fact based forum of lay people such as this appeal panel. It appears from your submission that your case is that the decision of findings of the Secretary of State were flawed however, we cannot rule on the exercise of those government powers. For this reason we consider that this hearing must proceed on the basis that the Secretary of State's power was exercised lawfully. We recognise that this is a point in dispute for you and anticipate that you may seek a public law remedy in future. However, the focus of this hearing are (sic) the requirements of statutory employment law."
"It is not good enough, and we can see from the Council's documents and indeed from the way the case was put this morning that the Council had no alternative. They were directed by the Secretary of State it is said …. Well, first of all, they didn't have to, the Council weren't directed to dismiss her - they were directed to appoint someone else as interim director. That may have meant that her position may have to be considered, but it could have been considered in a number of ways. Were there any functions of her post which weren't being assigned to the new director, she had been working in tandem with the new director since the 13th November. Could that arrangement have continued given her managerial skills, which had been successfully and generally favourably commented on in relation to education? Were those management skills transferable elsewhere within the Council … it didn't follow and the Council were wrong to proceed … on the basis that they had to do what they were doing because that was what the Secretary of State directed."
"MEMBER LEVEL APPEAL HEARING
I write to confirm the decision of the Member Level Appeal Panel, which met on Wednesday 7 January, Thursday 8 January and Monday 12 January 2009 to consider your appeal against summary dismissal at which you were represented by Mr Tony Childs.
The Appeal Panel considered the following allegation, as set out in the Council's letter of 3 December 2008.
The effect of the Direction of the Secretary of State made on 1 December 2008 in relation to the position you hold and the allegation that the relationship of trust and confidence in you has been fundamentally breached following receipt of the report of the Joint Area Review which sets out failures in the effectiveness of the management of child protection services at the most senior level within the Council.
The appeal hearing proceeded as a re-hearing of the allegation. The Panel reached its own conclusions on the basis of the evidence presented at the hearing.
The grounds of appeal challenged the validity of the Secretary of State's Direction, issued on 1 December 2008. Your legal adviser made legal submissions on that point, but the Panel held that it was not the proper authority to challenge the Direction and it would proceed on the basis that it was lawful and valid.
The grounds of appeal also challenged the decision of the original dismissal panel on 8 December 2008. However, as this appeal was a re-hearing, the appeal panel had focused on the evidence presented, with particular emphasis on the Joint Area Review (JAR).
The Panel reached its own independent conclusions without any outside influence. In particular, the Panel had not taken account of any press reporting and had expressed its displeasure about material reported in the press at the time of this hearing.
The Panel carefully considered the allegation and the grounds on which you had based your appeal reached the following findings:
1. The Panel reached the findings that the effect of the Direction of the Secretary of State on 1 December 2008, which it had no reason to suppose was not valid and lawful, was to remove responsibility for all duties and functions for your post as Director of Children and Young People's Service.
2. The Panel found that trust and confidence had been lost due to the summary judgement and the main findings of the JAR. These identified a catalogue of short comings across the service. The JAR specifically records the lack of effective supervision and management within the service.
3. The Panel appreciated that you had submitted information that questioned the validity of the JAR's conclusions. The Panel had also noted that the JAR records substantial failings in services other than Haringey. However, this Panel had no opportunity to verify your information through questioning the authors of the JAR.
4. In reaching its conclusions, the Panel had considered the impact of the Laming Inquiry on Haringey Council and took the view that the Director of Children's Services was personally accountable for any failings identified in the Service by the JAR.
5. The Panel considered acceptance of this responsibility to be a fundamental term of your employment. The findings of the JAR are such that this term had been breached.
On that basis, the Panel dismissed the appeal and the summary dismissal was upheld."
12. The history of these proceedings
13. Legal discussion
(a) the Secretary of State's decision
"… where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."
"Another way of stating what is in essence the same principle is to say that the chief officer must observe the rules of natural justice. Reference to 'rules' can, however, be misleading if it is taken to suggest some universally-applicable procedure or some formula-based test of what is required of the decision-maker. It can, I think, lead to an unduly doctrinaire and mechanistic approach. A test of fairness is to be preferred because, being very general, it can better embrace the almost infinite variety of situations which fall for consideration. The minimum that fairness demands in one case may be much more than fairness requires in another."
"The appellant has first to show that his position was such that he had, in principle, a right to make representations before a decision against him was taken. But to show this is not necessarily enough, unless he can also show that if admitted to state his case he had a case of substance to make. A breach of procedure, whether called a failure of natural justice, or an essential administrative fault, cannot give him a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The court does not act in vain …."
"I would readily accept the view expressed by Lord Denning MR and Cumming-Bruce LJ in George v Secretary of State for the Environment [1979] 77 LGR 689 at pp.695 and 699 that there can be no such thing as a technical breach of natural justice. That is because, to my mind, a procedure must in all the circumstances of a given case be either fair or unfair. Since (always assuming the absence of a prescribed statutory procedure) the court is concerned with matters of substance and not mere form, a procedure cannot be unfair in a purely technical sense. There is no third category embracing procedures which are unfair to the subject of the decision as a matter of technicality but not substance."
"While cases may no doubt arise in which it can properly be held that denying the subject of a decision an adequate opportunity to put his case is not in all the circumstances unfair, I would expect these cases to be of great rarity. There are a number of reasons for this:
1. Unless the subject of the decision has had the opportunity to put his case it may not be easy to know what case he could or would have put if he had had the chance.
2. As memorably pointed out by Megarry J in John v Rees [1970] Ch 345 at page 402, experience shows that what is confidently expected is by no means always that which happens.
3. It is generally desirable that decision-makers should be reasonably receptive to argument, and it would therefore be unfortunate if a complainant's position became weaker as the decision-maker's mind became more closed.
4. In considering whether the complainant's representations would have made any difference to the outcome the court may unconsciously stray from its proper province of reviewing the propriety of the decision-making process into the forbidden territory of evaluating the substantial merits of a decision.
5. This is a field in which appearances are generally thought to matter.
6. Where the decision-maker is under a duty to act fairly the subject of the decision may properly be said to have a right to be heard, and rights are not to be lightly denied."
"Probability is not enough. The defendant would have to show that the decision would inevitably have been the same and the court must not unconsciously stray from its proper province of reviewing the propriety of the decision-making process into the forbidden territory of evaluating the substantial merits of the decision. Authority for this synthesis may be found in R v Chief Constable of the Thames Valley Police, Ex p Cotton [1990] IRLR 344, 352, Simplex GE (Holdings) v Secretary of State for the Environment (1988) 57 P & CR 306, 327, R v Secretary of State for the Environment, Ex p Brent London Borough Council [1982] QB 593, 646, and see also Fordham, Judicial Review Handbook, 4th ed (2004), para 4.5 and Lewis, Judicial Remedies in Public Law , 3rd ed (2004), para 11– 027."
The petition
"Parliament entrusted the underlying statutory power, which entailed a discretion to adopt a policy of fixing a tariff, to the Home Secretary. But the power to fix a tariff is nevertheless equivalent to a judge's sentencing power. Parliament must be assumed to have entrusted the power to the Home Secretary on the supposition that, like a sentencing judge, the Home Secretary would not act contrary to fundamental principles governing the administration of justice. Plainly a sentencing judge must ignore a newspaper campaign designed to encourage him to increase a particular sentence. It would be an abdication of the rule of law for a judge to take into account such matters. The same reasoning must apply to the Home Secretary when he is exercising a sentencing function. He ought to concentrate on the facts of the case and balance considerations of public interest against the dictates of justice. Like a judge the Home Secretary ought not to be guided by a disposition to consult how popular a particular decision might be. He ought to ignore the high-voltage atmosphere of a newspaper campaign. The power given to him requires, above all, a detached approach. I would therefore hold that public protests about the level of a tariff to be fixed in a particular case are legally irrelevant and may not be taken into account by the Home Secretary in fixing the tariff. I conclude that the Home Secretary misdirected himself in giving weight to irrelevant considerations…."
"… the imposition of a tariff, which is intended to fix the minimum period to be spent in custody, is, in itself, the imposition of a form of punishment. This has … the characteristics of an orthodox judicial exercise, which is directed to the circumstances of the offence and those of the offender and to what, having regard to the requirements of retribution and deterrence, is the appropriate minimum period to be spent in custody. The judge, when advising the Secretary of State about the tariff, must and does confine his attention to these matters. He does not take account of public petitions or public opinion as expressed through the media. Expressions of opinion from these sources, however sincere and well presented, are rarely based on a full appreciation of the facts of the case."
(b) Ofsted's inspection and report
"A JAR is accordingly an inspection of the delivery of services, and in particular how well individual services work together. It is not an inspection of individuals. Just as in this case, JAR reports do not comment on, or quote directly from, individuals unless a particular instance of strong performance has been identified. No such performance was identified in this case."
"As with other Ofsted inspections – and as s.20(3) makes clear – a JAR is concerned with the effectiveness of organisational processes and performance overall. It is not an investigation into the performance of individuals. Neither does the JAR focus solely on the local authority's organisational processes and performance but on the individual and combined processes and performance of all agencies responsible for the delivery of services to children and young people in a local area. This includes, for example, the health service and the police. As such JAR reports do not generally refer to named individuals."
i) The Secretary of State's original letter to Ofsted inviting the inspection did ask specifically for part of the investigation to be into "the effectiveness of management practice and performance management systems in all relevant agencies" (see paragraph 142 above). It follows that the role of everyone in the "management systems" would come under scrutiny, including that of the Claimant as the DCS.
ii) The media profile of the whole issue of Haringey's child safeguarding arrangements and the Claimant's personal position within it had been raised to such a level within the period of less than six days between the verdicts in the criminal case and the commencement of the inspection that the inspection team could hardly have failed to be aware that the Claimant had become one target of the criticisms about what had happened. To what extent that, whether consciously or sub-consciously, played any part in the way in which the inspection team went about its task will probably never be known.
The gist of Ofsted's concerns
Finding 1
"There is insufficient strategic leadership and management oversight of safeguarding of children and young people from Haringey by elected members, senior officers and others within the strategic partnership."
It is fair to say, as Mr Maurici observed in his initial submissions in reply to Ofsted's case (in other words, before the additional disclosure was made) that Mr Ward could point to little, if any, contemporaneous documentary material to suggest that this overall issue was raised with the Claimant. Mr Ward's note was indeed sparse from that point of view. He had relied on the evidence of Ms Brown which suggested that leadership and management of safeguarding were discussed with the Claimant during the interview with her as DCS which was supported, not extensively, but certainly in one respect, by the RoE. He suggested that leadership and management issues "were a constant theme in the duty room and case-tracking feedback meetings." He had relied to a large extent on what the Claimant herself had said in her own commentary on the evidence submitted shortly before the case commenced.
"There has been insufficient leadership and strategic oversight of safeguarding services by Members and senior officers. In particular, this relates to failures to implement compliance with the requirements of the Climbié Inquiry."
"There is insufficient strategic leadership and management oversight of safeguarding of children and young people ... by elected members and senior officers within the strategic partnership. This is demonstrated by failure to ensure full compliance with some requirements of the Climbié Inquiry recommendations."
"Social care, health and police service files on vulnerable children do not demonstrate that managers have good oversight of the process of the case."
It also reflects, he contends, a point recorded by the Claimant in her own contemporaneous note of the Duty Room Feedback meeting where she recorded this: "Not finding records on the system — lack of managerial oversight."
Finding 2
"There is a managerial failure to ensure full compliance with some requirements of the inquiry into the death of Victoria Climbié, such as the lack of written feedback to those making referrals to social care services."
"53. When allocating a case to a social worker, the manager must ensure that the social worker is clear as to what has been allocated, what action is required and how that action will be reviewed and supervised."
She said that the inspectors "found that some allocations of cases were made electronically and without prior discussion with the social worker in question" and that this, therefore, constituted a breach of that recommendation. She says that she has "a clear recollection of discussing these matters with [the Claimant]." The Claimant, as I understand her position, disputes this. She says that this particular instance of suggested non-compliance with the inquiry recommendations arose in an interview with health visitors and that there is no record of this being followed up. She appears correct in that assertion. If Ms Brown did raise it with her, then I do not think she could have done so in a way that created any impression upon her and there is no contemporaneous record, in the RoE or elsewhere, that it was raised with her or anyone else. My attention has been drawn to no other contemporaneous record of discussions with anyone at Haringey about any other feature of the recommendations of the Victoria Climbié inquiry.
Finding 3
"The local safeguarding children board (LSCB) fails to provide sufficient challenge to its member agencies. This is further compounded by the lack of an independent chairperson."
"While the local children safeguarding children board (LSCB) provides an adequate oversight of broader safeguarding issues, it fails to provide sufficient independent challenge."
"Current management arrangements within the council and across the partnership do not facilitate sufficient independent challenge on safeguarding matters. The local safeguarding children board is chaired by the director of the children and young people's service. The management arrangements for independent reviewing officers, with senior management responsibility resting with the deputy director of the children and young people's service, are insufficiently independent of operational line management in social care."
Finding 4
"Social care, health and police authorities do not communicate and collaborate routinely and consistently to ensure effective assessment, planning and review of cases of vulnerable children and young people."
It is not in issue that something very similar was in the first draft. Mr Maurici's essential complaint is that there is no evidence that this was ever raised with the Claimant.
Finding 5
"Too often assessments of children and young people, in all agencies, fail to identify those who are at immediate risk of harm and to address their needs."
"Assessments of vulnerable children and young people by social care, health and police services are insufficiently rigorous and do not always focus on the needs of the child."
"In the vast majority of files read, the quality of assessments and care planning is poor. Information from other agencies is not always included and considered in the assessment and there is evidence of too limited analysis and understanding of the issues. Not all files have a chronology of the case and there is repeated failure to take proper account of the historical concerns. Social care managers are aware of the poor quality of assessments. However, there is no identifiable activity to address these deficiencies."
16. Case file recording for individual children and young people is inadequate. There is insufficient evidence of managerial oversight and decision-making on case records in children's social care services, police and health services. There is also limited evidence of thorough, analytical and reflective supervision to ensure individual casework is carried out effectively.
17. Police and health service files are often poorly organised and the process and planning of individual cases is difficult to follow. Health services' files include hand-written notes which are sometimes illegible and do not identify the author. The standard of record-keeping in the health records of looked after children and young people is poor and some entries are inaccurate.
18. Not all children's social care files have a chronology of the individual case. Police files also do not establish clear chronologies of events and it is difficult to decipher the key points at which decisions are made. The rank of the police officers involved is not always clearly stated, making it difficult to determine the level of supervisor involvement in the case.
19. While some files demonstrate that children and young people are seen and spoken to and their views taken into account, this is not consistently demonstrated in assessments. Files of children and young people subject to child protection plans and those of looked after children and young people state whether a child is seen alone. However, where the child has not been seen alone, there is limited evidence of managers addressing the reasons for this and enabling the child's voice to be heard.
20. There are frequent unacceptable and extreme delays in distributing to partner agencies the minutes of key meetings, such as child protection conferences, core groups and statutory reviews of looked after children and young people. This means that information and follow-up action required is not effectively and promptly communicated to all agencies involved with the child and his/her family.
21. Assessment and care planning are poor overall. The repeated failure to take proper account of historical concerns places children and young people at risk. Information from other agencies is not always used to inform assessments of children and young people, leading to weak analysis and understanding of the risks to the safety of the child. Managers in all agencies are aware of the poor quality of assessments. However, there is no identifiable activity to address these serious deficiencies.
22. The quality of health assessments for looked after children and young people is poor. There is insufficient guidance for and oversight of the work of general practitioners who undertake the majority of assessments.
23. The quality of assessments of risk to children and young people contained within police notifications of incidents of domestic violence is too variable. All such incidents where children are known to be in the household are notified to children's social care on a dedicated police system. However, they are not all sent in a timely way.
24. The use of the common assessment framework as a tool for multi-agency assessment is not universally understood or effectively implemented by staff across agencies, despite them having been trained. While the data show apparent good progress with assessments completed for over 800 children and young people, this figure masks the fact that most are not multi-agency assessments. The process is used primarily by agencies as a referral for additional individual services. Implementation of the common assessment framework has not been evaluated.
Finding 6
"The quality of front line practice across all agencies is inconsistent and not effectively monitored by line managers."
"Social care, health and police service files on vulnerable children do not demonstrate that managers have good oversight of the process of the case."
Finding 7
"Child protection plans are generally poor."
Finding 8
"Arrangements for scrutinising performance across the council and the partnership are insufficiently developed and fail to provide systematic support and appropriate challenge to both managers and practitioners."
"Performance management arrangements across the (partnership??) council, health services and police do not adequately support the Children and young people's Trust?/partnership Board in meeting their statutory responsibility for the safeguarding of children"
Finding 9
"The standard of record keeping on case files across all agencies is inconsistent and often poor."
"The standard of record keeping across agencies is inconsistent and sometimes poor."
Finding 10
"There is too much reliance on quantitative data to measure social care, health, and police performance, without sufficiently robust analysis of the underlying quality of service provision and practice."
"The heavy reliance on performance indicator data to measure social care and health (and police??) performance has led to a focus on meeting performance timescales. Insufficient priority is given to collecting, analysing, reporting and using information on the quality of services received by children and their families."
Conclusion
Was there an obligation of fairness to the Claimant on the part of Ofsted?
"The rules of natural justice that are germane to this appeal can ... be reduced to those two that were referred to by the Court of Appeal of England in Reg. v. Deputy Industrial Injuries Commissioner, Ex parte Moore [1965] 1 QB 456 , 488, 490, which was dealing with the exercise of an investigative jurisdiction ... The first rule is that the person making a finding in the exercise of such a jurisdiction must base his decision upon evidence that has some probative value in the sense described below. The second rule is that he must listen fairly to any relevant evidence conflicting with the finding and any rational argument against the finding that a person represented at the inquiry, whose interests (including in that term career or reputation) may be adversely affected by it, may wish to place before him or would have so wished if he had been aware of the risk of the finding being made.
…
The second rule requires that any person represented at the inquiry who will be adversely affected by the decision to make the finding should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional material of probative value which, had it been placed before the decision-maker, might have deterred him from making the finding even though it cannot be predicted that it would inevitably have had that result".
A retrospective on the inspection
1. In retrospect, we had too long a list of key judgments. We could not do justice to them all. We needed to focus on 2.3 and 2.4 as a priority.
2. Getting a good view of service management issues was a struggle, as we did not have the usual JAR background [information] from Audit Commission re budgets, political background etc. We saw a group of elected members together that we usually would have seen separately. [Lead Inspector] also interviewed Leader and [Chief Executive] together. This led to the risk that information interviewees might have given separately, may not have been divulged with others present.
3. The DCS was clearly in distress and not functioning well. The whole staff group was overshadowed by the press presence outside, and there was complete focus on protecting staff from the media. This was a constant pressure on the process, and an added pressure for the team, as we had to make arrangements to avoid the press ourselves.
4. The [Deputy Lead Inspector], from ED*, was invaluable as a support to [Lead Inspector] and, since she had led the JAR in 2006, gave excellent advice re who the key people in the authority are, since we did not get that [information] from the authority. My advice is to try to have someone on the team who has inspected the authority before for continuity.
5. Notwithstanding point 4, the [Deputy Lead Inspector] was clear she did not have the detailed knowledge and understanding of child protection and serious case review processes that was needed on the inspection. Her input was therefore limited to issues re missing children in fieldwork, and supporting the service management issues. She was excellent in her support of [Lead Inspector] however, and the [Lead Inspector]/[Deputy Lead Inspector] teamwork was crucial in the success of the inspection. Need to be clear what role the ED* person will take.
6. [Lead Inspector] had no onsite [administrative] support initially. Laptops from HCC and HMIC were not compatible with Ofsted, and huge difficulty extracting ROEs to send to [Alexandra House] for collation. First set of ROEs took [Lead Inspector] two hours to send through. This time was just not available to the [Lead Inspector], given the pressures of the inspection. Onsite [administrative] support then was given, which was invaluable.
7. We chose 16 casetracking files, plus five files from [the Baby P] case, plus two files from a further serious case review case. Total = 23. We only had one day for case file reading and 3 CD* HMI could not read all. Two CD* HMI colleagues were drafted in to read the seven social care files that related to specific serious case review families. Even this was not enough to ensure all files were read. Again, there were clear issues re poor quality of practice and record keeping. In an authority where this is less clear, the too limited time to read files would be an issue.
8. Given the confusion in the timetable, the team could not be sure we were seeing the right people, and that there were no interlopers from the press or by management. We devised a way of ascertaining that all interviewees were who they said they were, by asking them to vouch for colleagues present, requiring the authority to have checked ID etc. Having said that, [Lead Inspector] had to advise DCS on second morning that security at the main office was very poor indeed, since no inspectors had been asked for ID when they arrived on site! We had to advise the authority on a number of occasions that we could not have certain personnel present when they gave us lists of those attending, as we realised that managers were being inserted into interviews of groups of front line staff.
9. All team members worked 15-16 hour days on site to achieve what we did. On leaving site, team and [Lead Inspector]/[Deputy Lead Inspector] had to start writing the report immediately. Given the length of time working onsite, many ROEs were not by then complete, and key documents had not been read. This had to happen over the weekend and on the first Monday after fieldwork. Senior managers wanted to see the draft by 5.00pm that Monday. This was not achievable and the 'draft report' was a jumble of information. This is usually the case at that point of an inspection, but it was distressing and embarrassing to have to send it to senior managers at that point. However, it is completely understandable that senior managers would wish to see a flavour of the findings.
10. The [Her Majesty's Inspector of Constabulary] inspector is not used to working in a team and found it difficult to share information and work together. She had to arrange her own interviews, due to the failure of the authority to cope with arranging the timetable, and was hardly on site with the team. This was a continuing difficulty, ensuring her evidence was conveyed to [Lead Inspector] and team.
11. The [Health Care Commission] inspectors worked very hard. However, one of these had not been on a JAR before and did not seem to understand the importance of challenging information and triangulating same. She accepted what she was told on face value. She also needed a lot of support to make appropriate judgements in ROEs, and the quality of her ROEs were generally poor. This took too much time by [Lead Inspector] and [Deputy Lead Inspector] in an extremely busy and disorganised (thwarted by the lack of organised cooperation by the authority – not disorganised by us!) process.
12. The [Quality Assurance] manager was extremely supportive. However, the recognised need of senior management to know how things were going throughout meant many conversations late into the evening for [Lead Inspector] to feed back. It was very helpful for [Quality Assurance] manager to be on site, and gather this information as it occurred, thus limiting the need for meetings/conversations late at night.
13. There were a very high number of requests to [Lead Inspector] from [Alexandra House] to respond to allegations/queries/anonymous letters etc throughout the week. Given how pressured the inspection itself was, getting requests to investigate/respond immediately to all these contacts was almost overwhelming. Need to allocate one person to do this.
14. The [Lead Inspector] and [Deputy Lead Inspector] (and the team) were exhausted on coming off site. The pressures to get the report into a professional, concise, and well worded product were immense, with travel expected to Bristol, then London, offices, so [Quality Assurance] manager, and [Roger Shippam] could sit with them to ensure the process. This was done with very good will, but the lack of time to reflect when coming off site, (and sleep!) was a very real difficulty. Also, evidence was still coming in daily, as the team caught up with ROEs.
[* My comment: I am unaware precisely what these abbreviations represent, but their context would suggest that 'ED' is Education Department/Directorate and 'CD' is Care Department/Directorate]
i) The overshadowing of the whole inspection process and the pressures caused by the media presence outside the Haringey offices and the need for the inspectors to ensure that there were no "interlopers from the press" in any interviews they conducted.
ii) The limited time in which important features of the inspection were to be considered including the time to prepare for the inspection.
iii) The difficulty of getting "a good view of service management issues".
iv) The length of the working days and the need to work into the night to complete the task, the lack of sleep and the lack of time to reflect on the part of those involved in the inspection.
v) The inability of the team, because of the time constraints, to maintain the RoE on a wholly up to date basis.
vi) The production of a first draft report for senior managers that was a "jumble of information".
(c) Haringey's decision
"6. Ministers have invoked their powers of direction only when absolutely necessary and in proportion to the extent and nature of the failure identified. The most extreme forms of intervention, and in particular directing the outsourcing of services, have only been used where there is compelling evidence of serious failure and of the inability or reluctance of the authority concerned to tackle that failure within a reasonable timescale. Intervention normally follows a period of discussion with the local authority, leading if possible to agreement about the action to be taken.
...
7. Since 1997 statutory powers have been used in 12 local authorities, although we have never used the "Armageddon" power, whereby the Secretary of State can appoint a 'nominee' to run the services directly on his behalf rather than on behalf of the Council. In each case, the reasonable and proportionate test was applied in order to reduce the risk of legal challenge, which is always open to a local authority, and an essential part of that process is allowing the local authority the opportunity to make representations once notified of ministers' intention to invoke statutory powers. This means that Secretary of State's statement after receiving the Ofsted report on Haringey could only indicate an intention to use such powers ie that he is "minded" to intervene and allow a period for the local authority to make representations. In previous cases, the final decision to intervene has followed on from a period of discussion with the local authority about performance issues and options for addressing them which has typically lasted several weeks."
"Haringey: a directed outsourcing of a general education function resulting in the senior management team being replaced with the external contractor's staff and the contractor having responsibility for the management of staff who remained the responsibility of the Council. The contract ended in 2004 ..."
" … I think that earlier decisions in this general field must now be read in the light of the employment protection legislation to which I have referred. The concept of natural justice involved in many of the cases is clearly now subsumed in that of an "unfair dismissal." To the extent that such cases laid down any principle of law, then of course they must be followed. As always, however, to the extent that they were really decided upon their own facts they provide no precedent for later cases."
"If the employer shows that he has a substantial reason for dismissal ... that does not in itself establish the fairness or unfairness of the dismissal. Except in [certain] special cases ... it is necessary to the second stage of adjudication of fairness. At that stage, the issue of fairness depends upon whether the tribunal is satisfied that in the circumstances the employer acted reasonably in treating the reason shown to him as a sufficient reason for dismissing the employee. The tribunals are able to take matters both of substance and procedure into account when deciding the issue of reasonableness. At the substantive level, the tribunals can consider the whole sequence of developments leading to a dismissal and can, in effect, apply their own standards of good employment practice in order to evaluate the dismissal ...."
i) there is no evidence before me that the Claimant knew what Councillor Reith had said or had associated herself with at the press conference;
ii) if she did know what had been said and yet took no point about it, it suggests that she was either not fully and properly advised about what she ought to do or had not focused on the issue to which Councillor Reith's presence gave rise.
i) The continued non-disclosure of the communications between Haringey and Ofsted over the evidence base for the report's findings.
ii) The quite open statements of Dr O'Donovan, apparently on behalf of the Council, that the Claimant had been dismissed with no compensation without referring to the proposed appeal (which Mr Young knew about some 3 hours before Dr O'Donovan's email to the staff: see paragraph 335). Dr O'Donovan repeated this in her statement of 9 December. I accept, of course, that a group of Councillors is not bound by what the Chief Executive says, but it is very difficult to believe, in the circumstances that prevailed, that Dr O'Donovan would have said what she did, certainly in the statement of 9 December, without having secured "cover" from the Leader of the Council or someone at a very senior member level. If that is the correct inference, it affords a clear basis for saying that "the Council" had given the appearance of a predetermined outcome to any hearing that took place. Dismissing the Claimant was, of course, one thing: dismissing her summarily with no compensation is another.
iii) The approach of the Panel to the evidence given by the Claimant questioning the validity of parts of the Ofsted report is unusual. The Panel appeared to dismiss the Claimant's approach because it "had no opportunity to verify [her] information through questioning the authors of the JAR." It may indeed be correct that they had no opportunity of questioning the inspectors or others involved in writing the report, but where evidence cannot be challenged at a hearing by other evidence, and where, as here, the evidence of the Claimant was essentially unchallenged in any questioning of her, it is very unusual effectively to reject what a witness has said. To do so is doing that which I have not been prepared to do in these proceedings (see Section 4).
Overall conclusions
Concluding remarks
"If men are inclined to deal unjustly with their fellows, the possession of power aggravates this inclination. That is why irresponsible and uncontrolled power is the greatest source of injustice."
APPENDIX 1
Text of communication to the parties on 15 March 2010 following the exchange of the further written submissions on the additional Ofsted disclosure
Introduction
(a) The Response on behalf of the Claimant to Ofsted's post-trial disclosure, running to some 40 pages, with 2 Annexes running to a total of 37 pages.
(b) Ofsted's reply to the Claimant's Response, running to some 58 pages, with an Annex running to 29 pages.
(c) The submissions of the Secretary of State running to some 3 pages and the submissions of Haringey running to some 7 pages.
(d) The Claimant's Rejoinder running to some 24 pages.
(e) Several large files of documents comprising Ofsted's post-trial disclosure.
The issue
What is needed
The response on behalf of the Claimant
We write in response to your communication dated 15 March 2010. We are grateful for the additional day in which to respond.
We have considered the communication carefully with our client.
With some reluctance, we have decided not to invite you to receive oral evidence at this stage of the proceedings.
Our submissions in paragraphs 23 and 24 of our Response to Ofsted's post trial disclosure (using the numbering in the version sent to the Defendants) were premised on the basis that the costs of further oral hearing (for cross-examination) would be payable by Ofsted as the necessity for such a hearing would have arisen from Ofsted's post trial disclosure, no party having previously applied for cross- examination. The costs premise on which we made that submission is not in accordance with Your Lordship's indication, which is to the effect that we would have to make an application for some sort of protective costs order, and we have therefore reconsidered our position having regard to the costs consequences of, and the delay occasioned by, a further oral hearing if one were to take place.
On the grounds of (i) cost and (ii) delay, we do not invite you to receive oral evidence.
On costs we have made clear that there has been an inequality of arms. Our limited funds are exhausted. Any hearings to receive oral evidence would involve considerable expense. Moreover, while a costs-shifting order could be applied for it is clear that this will be strongly resisted by Ofsted. Even if such an order were granted such costs could not pre-emptively be awarded on an indemnity basis. Our client would face a residual but significant costs liability in respect of our costs and the costs of Counsel.
If there were to be cross-examination, our position (set out in the Response) is that this would necessarily extend beyond the issue of whether the gist of alleged "central concerns" was communicated to the Claimant to credibility more generally and to the destruction/deletion of documents. In any event, cross-examination of up to six Ofsted witnesses as well as our client would necessitate a lengthy hearing. Following such oral evidence a further round of oral and/or written submissions would likely be required as to the impact of the oral evidence on previous submissions and generally. Preparation time for a hearing involving cross-examination of all these witnesses would be substantial. The hearing itself would likely require 4-5 days or more and, it seems to us, would not be possible until some time after Easter.
Further and in any event, cross-examination with evidence from Ofsted officials and our client, followed by further submissions, will inevitably result in a further significant delay in the resolution of these proceedings. As everyone has acknowledged, the delays caused by Ofsted's serious failures to comply with its duties of candour and/or to make disclosure have (to use Mr Ward's words) placed an "immense burden" on our client (see our Response at para 78) and have significantly impacted on her. We have advised our client against a course which will result in further delay to the resolution of these proceedings.
Accordingly, we do not pursue the submission for cross-examination set out in paragraphs 23 and 24 of our Response. We continue to rely on the observations of Stanley Burton J. in S v Airedale NHS Trust as set out in paragraph 23 of our Response as to when the evidence of a witness can be rejected in the absence of cross-examination.
We continue to rely on our contentions that:
(i) Ofsted was in breach of statutory duty (in breach of the published arrangements applicable to JAR's);
(ii) in addition, Ofsted acted in breach of natural justice in that the communication of the gist of alleged "central concerns" would not have been sufficient in this case to comply with the rules of natural justice;
(iii) if, contrary to (ii), adequate communication of the gist of alleged "central concerns" and the giving of an adequate opportunity to respond thereto was capable of being sufficient in this case to comply with the rules of natural justice no adequate communication of the gist was made by Ofsted and no adequate opportunity to respond was given;
(iv) to the extent that Ofsted's case had any credibility (which is denied) it has been undermined by the post trial disclosure for the reasons set out in our Response and Rejoinder.
APPENDIX 2
The duty of candour and disclosure issues
"… there is no duty of general disclosure in judicial review proceedings. However, there is … a very high duty on public authority respondents, not least central government, to assist the court with full and accurate explanations of all the facts relevant to the issue the court must decide."
"2. The disclosure of documents in civil litigation has been recognised throughout the common law world as a valuable means of eliciting the truth and thus of enabling courts to base their decisions on a sure foundation of fact. But the process of disclosure can be costly, time-consuming, oppressive and unnecessary, and … the general rules governing disclosure [have not] been applied to applications for judicial review. Such applications, characteristically, raise an issue of law, the facts being common ground or relevant only to show how the issue arises. So disclosure of documents has usually been regarded as unnecessary, and that remains the position.
4. Where a public authority relies on a document as significant to its decision, it is ordinarily good practice to exhibit it as the primary evidence. Any summary, however conscientiously and skilfully made, may distort. But where the authority's deponent chooses to summarise the effect of a document it should not be necessary for the applicant, seeking sight of the document, to suggest some inaccuracy or incompleteness in the summary, usually an impossible task without sight of the document. It is enough that the document itself is the best evidence of what it says. There may, however, be reasons (arising, for example, from confidentiality, or the volume of the material in question) why the document should or need not be exhibited …."
- It is particularly important when evidence is being prepared. When evidence is served in response to an application for judicial review, what is required is that that evidence read as a whole (i.e. the witness statement and the documents served in support of it) must be such as to meet the obligation of candour.
…
- When preparing evidence in response to a claim for judicial review, one issue that frequently arises concerns the extent to which the duty of candour can be satisfied by providing a full and fair explanation of all relevant matters in a witness statement, and the extent to which such evidence must be supported by exhibiting relevant documents. Usually a mix of explanation by way of witness statement, and exhibiting key documents will be appropriate.
- The duty of candour continues to apply throughout the proceedings. For example, if after the service of evidence, further relevant information comes to light, that information must be disclosed to the other parties to the proceedings and put before the Court at the earliest possible opportunity.
i) Handwritten notes of Ms Ryan (or, more accurately, a more extensive version of those notes than had previously been assumed).
ii) A considerable amount of electronic material from Mr Pullen (which included various drafts or the Ofsted report).
iii) An e-mail from Mr Hart to Ms Brown of 16 December 2008.
That Ofsted should file and serve a witness statement or statements:
a. signed by a senior official explaining in full the enquiries that have been made in order to discharge Ofsted's duty of candour, and stating that in their view such duty has been discharged; and
b. explaining in full as a result of the Claimant's requests of 21 August 2009, 21 September 2009 and 12 October 2009 for "copies of all drafts of the JAR report" what enquiries were carried out by Ofsted and/or the Treasury Solicitor's Department, with what outcome, how the responses given were arrived at and why the responses changed (excluding matters which are the subject of legal professional privilege).
"2. Major issue from Phil
any e-ms on system. Baby P or Haringey are deleted.
URGENT!"
3. By way of background, I would like to explain that press and media interest in the Haringey joint area review was, by the 17 November 2008, almost at fever pitch. For example the council's offices were constantly surrounded by press reporters, photographers and television crews, through which the inspection team had to pass when entering the building.
4. In this environment, both myself and Roger Shippam ... were acutely aware of the need to protect the confidentiality of the inspection and any information relating to Baby Peter and his family. This meant keeping such information confidential to the inspection team and relevant managers. We were extremely concerned to avoid unauthorised disclosures of information beyond those individuals, and we felt that the risk of such disclosure was very real. We were, for example, aware that there had been two attempts by reporters to infiltrate child protection conferences in Haringey in the period leading up to the inspection. This made the need to seek to protect the confidentiality of the inspection all the more compelling.
5. Our concerns were increased by the fact that the laptops used by inspectors from Ofsted, the then Healthcare Commission and ... HMIC ... did not have compatible IT security systems. As a consequence of this, we had to be especially mindful of preventing accidental disclosure of data to third parties. For example, the HMIC security system did not permit the transfer of data by memory stick at all so that all HMIC contributions to the record of evidence had to be sent by email.
6. In this intense environment I think we became rightly, but perhaps excessively, concerned with unauthorised disclosures. The confidentiality concerns were that, internally, there was the risk that other Ofsted staff not involved with the inspection (and any visitors to the office) might be able to view data on laptop or desk top computer screens, as we work in open plan offices and Ofsted is a large organisation. As such, when high profile issues are being dealt with it is necessary to put in place additional restrictions in order to preserve confidentiality and ensure that there are no unauthorised disclosures.
"... decided to request the inspection team to delete any existing e-mails specifically referring to "Baby P" or Haringey." This was on the basis of the confidentiality concerns I have outlined above. As I have explained, we felt that the risk of unauthorised disclosure was very real. Moreover, the use of the terms "Haringey" or "Baby P" in e-mail correspondence would, in the event of such disclosure, identify the subject matter. It is also important to note that had anyone outside of the team been able to access the e-mail system this would have enabled them to open any attached copies of the inspection record of evidence."
He then said that he -
"... made a call to Heather Brown on the morning of 18 November 2008, asking her to tell the inspection team not to use the terms "Haringey" and "Baby P" in future e-mails and to delete any existing e-mails which included those terms. I understand that Heather Brown informed the inspection team of my request at a team meeting that morning, and that it is this communication which underpins the entry in Mary Ryan's notes. I can confirm that I only conveyed this request to Heather Brown and I only asked her to convey it to members of the inspection team ...."
"Later that morning I remember discussing the confidentiality issues with Clive Newsome, who was then the Business Manager in Ofsted's local services inspection division [who was] the person in the division that dealt with the team of dedicated officers who advise Ofsted on data retention on a regular basis .... His advice was that e-mails should not be deleted and, following our discussion, I appreciated that it would be an error to delete any emails relating to the inspection process, even those relating to purely administrative matters, particularly given the high profile nature of the Haringey joint area review."
He said that he reflected on this advice and took the following action:
"Having thought matters through, I decided to retract my earlier request and, as soon as possible, I made telephone contact with Heather Brown. I was able to speak to Heather early that afternoon requesting that she inform all members of the inspection team not to delete any e-mails. I have spoken with Heather Brown since this time and she confirms that she did communicate the retraction of the request to each inspection team member on that day."
"…the presumption, as one would expect, is not to be applied in an absolute way. In Malhotra v Dhawan [1997] 8 Med LR at 319, the principle as laid down by the Court of Appeal was accurately summarised in the head note to this effect:
"If it were found that the destruction of the evidence was carried out deliberately so as to hinder the proof of the plaintiff's claim, then such finding would obviously reflect on the credibility of the destroyer. In such circumstances it would enable the court to disregard the evidence of the destroyer in the application of the principle."
13. Please provide copies of all drafts of the JAR report and copies of all comments received on those drafts from within and outside Ofsted.
We do not consider that such materials are relevant to the issues that arise for determination in this case and/or reasonably necessary and proportionate to enable the Claimant to prepare her case.
We consider that such materials are relevant to the issues that arise for determination in this case. As will have been evident from our skeleton argument, a significant issue for determination in this case is the extent to which our client was or was not consulted on the outcome of the JAR during the fieldwork stage of the inspection. The origin of the contents of the report and their timing will assist the Court with the determination of this issue. The provision of such drafts is therefore reasonably necessary and proportionate to enable our client to prepare her case. (My emphasis)
We are instructed that Ofsted has been unable to locate any further drafts.
THE QUEEN On the Application of SHARON SHOE SMITH
- v -
(1) OFSTED
(2) SECRETARY OF STATE FOR CHILDREN SCHOOLS AND FAMILIES
(3) LONDON BOROUGH OF HARINGEY
RULING OF THE ADMINISTRATIVE COURT ON CONSEQUENTIAL MATTERS FOLLOWING THE JUDGMENT HANDED DOWN ON 23 APRIL 2010
THE HON. MR. JUSTICE FOSKETT
Introduction
" ... whilst the result of the case is clear, the consequences, in my view, require careful consideration and I shall be encouraging the parties to take stock and not rush back to court on consequential applications. I shall be extending the time for doing that so that there is no obligation to come back quickly."
"In very short summary, those are my conclusions. They will result, in the formal sense, in the dismissal of the Claimant's applications. As may be appreciated, they do raise rather more issues than just that consequence and it is for that reason that I am inviting the parties to give careful consideration to the implications before taking any further steps in this litigation.
I shall extend the time for making any consequent applications generally, with permission to apply. I cannot dictate, but my hope is that no party will feel the need to make any application to me until at least 28 days has elapsed from today. If that hope is realised I will arrange to contact all parties at the expiration of that period to see whether any further intervention on my part is required. In due course, an order giving effect to today's decision and any consequential matters will be drawn up."
A. COSTS
An agreed issue
Another (unarguable) issue
The competing contentions on costs up to the end of the trial
(a) The Claimant and the Secretary of State
The Claimant submits that the correct order in relation to the Secretary of State is "no order as to costs. The Secretary of State claims from her just short of £138,000 as the costs to the end of the trial.
(b) The Claimant and Ofsted
The Claimant submits that Ofsted should pay 50% of her costs up to the end of trial (presumably, 50% of her costs against Ofsted) or, alternatively, that there should be no order as to costs. Ofsted submits that it should receive its costs (said to be just over £115,000) up to the end of the trial or, alternatively, that there should be no order as to costs.
(c) The Claimant and Haringey
The Claimant submits that Haringey should pay her two-thirds of her costs - presumably two- thirds of her costs as against Haringey. Haringey seeks an order for costs against the Claimant of in the region of £88,500 (although there is some VAT to be added to some elements within that figure).
The arguments
Some general factors
(a) Whilst in "ordinary" civil litigation between two parties, the starting point is that the unsuccessful party pays the successful party's costs, the court has a very wide discretion to order differently if the justice of the situation requires a different order: see CPR, r. 44.3. The starting point is frequently modified.
(b) However, whilst the same starting point applies in judicial review proceedings, as the Court of Appeal said clearly in R (Corner House Research) v Secretary of State for Trade and Industry [2005] 1WLR 2600, there are differences between "ordinary" civil litigation and judicial review (or public law) cases such that the approach to the incidence of costs "will not necessarily be identical". This distinction derives largely from the fact that there is in such cases often a wider public interest in the elucidation of public law principles in addition to the interests of the particular individual parties. The observations of the Court of Appeal were made in the context of an application made by the Claimants in that case for a "protective costs order". Although I have not had the benefit of submissions on the point, there is, in my judgment, no reason not to have regard to the general factor identified by the Court of Appeal at the conclusion of a substantive case in appropriate situations: the principle remains as valid at that juncture as it does at any other time.
16. Furthermore, it does not seem to me that the Claimant can be criticised for proceeding against each party as a defendant. Indeed none of the defendants has taken any point about this. However, it is necessary to put this consideration into context. Often parties other than the "obvious" defendant are introduced as Interested Parties in judicial review proceedings. Notwithstanding this the practice tends to be to restrict the costs that an unsuccessful Claimant may have to pay overall: see Fordham, Judicial Review Handbook, 5th edition, paragraph 18.1.7. In this case there were discrete claims to be made against each defendant even though the actions of each were closely entwined with the actions of the others. Equally, perhaps to some extent with the wisdom of hindsight (although it might have been anticipated by her advisers), it was to the obvious advantage of the Claimant to have all these parties before the court and subject to the obligation of candour. But for that I am not convinced that all the potentially relevant parts of the story would have been told. For example, but for the disclosure by the Secretary of State, no-one would have known what was said by Ms Gilbert and Ms Brown to the then Secretary of State on the morning of 1 December (see paragraphs 291-293 of the judgment). Whilst I have not been able to reflect my criticism of that episode in any remedy in law for the Claimant, it helps inform the events of the press conference later that day about which I ventured further criticisms (see paragraphs 303 and 398 of the judgment). Another example is afforded by the revelation in Ofsted's post-trial disclosure of the changes made to the draft report concerning the Climbie Inquiry recommendations at the behest of the then Leader of the Council in the presence of the Chief Executive (see paragraphs 297-298). I characterised this as "unfair", not merely to the Claimant, but to others in the managerial team. Equally, but for the Ofsted disclosure, the fact that Haringey was arguably seeking evidence to support its own disciplinary proceedings against the Claimant and others would not have been revealed (see paragraphs 343-346 of the judgment).
17. Finally, when looking at the general position in this case, there is no doubt at all that a great deal of evidential material was thrown in the direction of the Claimant's case in (literally) the days approaching the hearing before me in October last year. Lengthy letters written to each of the defendants by the Claimant's solicitors on 6 October (the day before the hearing commenced) articulated the issues very clearly. I will highlight the following:
(i) Secretary of State's case
Whilst no extensive new material was disclosed shortly before the hearing, the revelation referred to in paragraph 179 of the judgment emerged only when Ms Pugh's second witness statement was received by the Claimant's solicitors at shortly before 16:00 on 2 October.
(ii) Ofsted's case
Four new witness statements were provided on 1 October, two of them after 18:00 hours that day.
(iii) Haringey's case
Two witness statements, one from Mr Young and one from Dr O'Donovan (dealing in some considerable detail with the circumstances of the Ofsted inspection and the preparations for it), were served on 1 October.
Each defendant asserts that the late delivery of this material arose from the late delivery of the Claimant's own substantial substantive witness statement on 18 September. However, it is quite plain that that statement was delayed significantly by the delays in supplying the evidence (and, to some extent, the disclosure) on the part of the various defendants, principally on the part of the Secretary of State, at an earlier stage.
The orders made
(i) The Claimant and the Secretary of State
(ii) The Claimant and Ofsted
"Unless I am asked to consider some kind of cost-capping order, I am not at this stage prepared to pre-judge my overall discretion as to costs when that issue comes to be addressed save to say that, as things stand, it will come as no surprise to the parties that, irrespective of the outcome of these proceedings, I may need some persuading that Ofsted should be the beneficiary of any positive order for costs in its favour from any other party in the proceedings. However, all that is for another day if the issue arises."
(iii) The Claimant and Haringey
B. PERMISSION TO APPEAL
"Permission to appeal may be given only where-
(a) the court considers that the appeal would have a real prospect of success; or
(b) there is some other compelling reason why the appeal should be heard."
Secretary of State was entitled to rely on this process as effectively discharging his obligation of fairness to the Claimant. That issue seems to me to be one capable of being argued in the Court of Appeal without Ofsted's involvement as a party.
Conclusion