Shoesmith, R (on the application of) v Ofsted & Ors (Includes Ruling and Submissions) [2010] EWHC 852 (Admin)

[2010] EWHC 852 (Admin)

Case No CO/2241/2009

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 23/04/2010

Before

MR JUSTICE FOSKETT

Between

THE QUEENClaimant

On the Application ofClaimant

SHARON SHOESMITHClaimant

OFSTED1 st Defendant

SECRETARY OF STATE FOR2 nd Defendant

CHILDREN SCHOOLS AND FAMILIES3 rd Defendant

(3) LONDON BOROUGH OF HARINGEYDefendant

(Transcript of the Handed Down Judgment of

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James Maurici (instructed by Beachcroft LLP) for Claimant

Tim Ward and Ben Lask (instructed by Treasury Solicitors) for 1 st Defendant

James Eadie QC and Clive Sheldon (instructed by Treasury Solicitors) for 2nd Defendant

Ingrid Simler QC (instructed by Haringey Legal Services) for 3 rd Defendant

Hearing Hearing dates: 7 th, 8 th and 9 th& 12 th October 2009

Also: 10 th November and 11 th December

Further written submissions and representations between 9 th February 2010 and 18 th March 2010

Judgment

As Approved by the Court

[1]Introduction Peter Connelly died on 3 August 2007. He was only 17 months old. In his tragically short life he was the victim of dreadful and sickening physical abuse. Until his identity was permitted to be revealed, he was known in the public consciousness as ‘Baby P’. Doubtless for many he still is and it may be the way in which he will be remembered.

[2]In the few weeks or so before he died he had suffered seven fractured ribs, a broken spinal cord, bruising to his face and back and the forceful knocking into his mouth of a tooth which he ingested. The rib fractures and the broken spinal cord would have required the infliction of very considerable force. These were but a few examples of the injuries he had sustained at various times.

[3]Those directly responsible for the injuries that led to his death were his mother, Tracey Connelly, her boyfriend, Steven Barker and Steven Barker’s brother, Jason Owen, who was lodging in the house during the relevant period. Barker’s presence in the home was concealed from the knowledge of those in authority who visited. Following Peter’s death they were arrested and charged with murder. Each was acquitted of murder and the alternative offence of manslaughter during a trial at the Central Criminal Court in the autumn of 2008 - Tracey Connelly and Jason Owen on the direction of the judge, His Honour Judge Kramer QC, at the close of the prosecution case and Steven Barker in due course by the jury. Each was, however, convicted of an offence contrary to section 5 of the Domestic Violence, Crime and Victims Act 2004 of causing or allowing Peter’s death, his mother having pleaded guilty at the outset of the trial, albeit on a limited basis which the judge ultimately did not accept.

[4]The sentencing process and the response to it by the Attorney-General and at appellate level, where it has arisen, is in the public domain and has been well publicised.

[5]Judge Kramer said that any decent person who heard about the suffering to which Peter was exposed before his death “could not fail to have been appalled.” The Secretary of State for Children, Schools and Families said, following the verdicts in the case, that the case was “tragic and appalling” and that the treatment of Peter was “evil and horrific”.

[6]Any number of expressions could have been, and indeed were, used to describe the case and those involved in it. It provoked a universal sense of outrage and gave rise to some strongly expressed views about those who bore either direct or indirect responsibility for Peter’s death or who were perceived to have done so. It still does. Attractive or not, justified or not, well-informed or not, strongly expressed views will inevitably follow a case involving the death of a baby in the kind of quite dreadful circumstances that surrounded Peter’s life and eventual tragic death. Sadly and depressingly, shocking and heart-rending though the circumstances of his short life were, the story does not reflect a unique occurrence.

[7]According to press reports contained in the papers before the court (and indeed by reference to the transcript of the proceedings that has been provided to me subsequently), in evidence given to the House of Commons Select Committee on Children, Schools and Families on 10 December 2008, Her Majesty's Chief Inspector at Ofsted (the 'Office for Standards in Education, Children’s Services and Skills'), Ms Christine Gilbert, said that in the period from April 2007 until August 2008, 210 children, 21 of them babies, died of abuse or neglect in England. In his report prepared in 2009 (see paragraphs 100, 123-124 below), Lord Laming said that “Home Office data shows that in 2007/08 55 children were killed by their parents or by someone known to the child.” After the hearing in October 2009 was concluded it was impossible not to note the Ofsted Press Release on 15 October 2009 relating to the publication ‘Learning the lessons from serious case reviews: Year 2’ which indicated that the 173 Serious Case Reviews (see paragraph 66 below) carried out and completed between 1 April 2008 and 31 March 2009 related to 219 children and included 113 cases of child deaths as a result of an incident – not all, it should be said, because of the kind of neglect and abuse shown in the present case. However, of the 219 children identified, 68% were known to social care services at the time of the incident.

[8]However these various statistics are interpreted, they evidence a sub-culture of abuse and violence to vulnerable children that any civilised person would find totally abhorrent. They offer support for the proposition that the systems presently in place do not always operate to prevent the deaths of children known to the social care services. Reports of other incidents, cases and Serious Case Reviews since then and during the period when this judgment has been pending serve to confirm that proposition.

[9]As will by now be well-known, during a crucial period before and leading up to his death, Peter was the subject of a child protection plan put in place (on 22 December 2006) by the London Borough of Haringey (‘Haringey’) and was thus on the child protection register. He was one of in the region of 200 children similarly registered in Haringey at the time. He had become registered because of concerns about abuse and neglect. He was seen about 60 times during this period by various social workers, doctors and other health care professionals (whose visits apparently numbered 38) and the police. Tragically, the warning signs of impending catastrophe were not picked up or, if picked up, were not acted upon. In order to put matters in context, it is right to note that Judge Kramer expressed himself satisfied (as indeed have others, including the Secretary of State) that the mother’s own wilful deception of the authorities over several months contributed to the failure of those involved with the family fully to appreciate the lurking dangers. Furthermore, the broken spinal cord that was inflicted on Peter some 3-4 days before he died, and which caused or contributed to his death, was not identified by the locum consultant paediatrician, Dr. Sabah Al-Zayyat, who saw him on 1 August. On any view, no-one within Haringey can be blamed for that omission.

[10]After the conviction of those directly responsible, attention was turned to those charged with trying to prevent this kind of terrible tragedy occurring. Why did it all go wrong? How could it happen again in the borough where the Victoria Climbié case had occurred some years previously? That case had also captured the public attention and led to the Laming Report and the statutory scheme that Haringey and all other local authorities with responsibility for children throughout the country had been seeking to put into effect since the implementation of the Children Act 2004 during 2005.

[11]During the period covering Haringey’s involvement with Peter the Claimant, Ms Sharon Shoesmith, was the Director of Children and Young People’s Services (the ‘DCS’) within the Borough. She was thus the head of the team responsible for child safeguarding within Haringey, although day-to-day management responsibility for that part of the authority’s services was delegated to and undertaken by Cecilia Hitchen, the Claimant’s Deputy, whose expertise and experience was in social work. I shall say more about the position of DCS in due course (see paragraphs 61, 75-77 below). The Claimant had become DCS in April 2005 and when Peter died was therefore a little over two years into a newly-created statutory position in a borough where historically the Council and other agencies with responsibility for safeguarding vulnerable children had been shown to be significantly wanting. Along with many of her colleagues who took on such a role elsewhere in the country, her experience was not in social care, but in education. From the outset it is a position that would plainly present anyone, even someone with a social care background, with very significant challenges. When she became DCS there were 5 Deputy Directors within the department, but by 2006 budget constraints had reduced the number to 3.

[12]Prior to the verdicts being returned in the criminal case the Claimant had been a highly valued and respected member of the administration at Haringey. She first went to Haringey as part of the Capita intervention team in 2001 on the direction of the then Secretary of State for Education and Skills following a critical Ofsted inspection report concerning the provision of education services within the Borough. The whole of the senior education team had been replaced. As I have said, her professional experience had been in education. She started as a teacher in primary education, had considerable experience in special education for children with learning difficulties and then moved to the role of advisory teacher. She became a senior inspector for special education and in due course moved into inspection as an HMI with Ofsted before joining Capita.

[13]She had been appointed Director of Education for Haringey in April 2003 and continued in that role until she was appointed DCS. The Children's Services Department was set up in embryo form and she became DCS (Designate) with effect from 12 October 2004 by means of a decision under Haringey's Urgency Procedures. In April 2005 the Children’s Services directorate was established formally when Haringey’s Education Department merged with Social Services to form the Department of Children’s Services, with the Claimant continuing in employment as Haringey’s DCS.

[14]I have been told, and have no reason to doubt, that she personally made a very significant contribution to the improvement in the educational services in Haringey during her time as Director of Education. She was plainly very highly thought of within the Borough and continued to be highly thought of by her colleagues within Haringey until the events with which this case is concerned. The Chief Executive of Haringey, Dr Ita O’Donovan, said in her witness statement filed shortly before the hearing in October 2009:

“… I would like to make clear that [the Claimant] had enormous respect and credibility within Haringey Council generally (and with me in particular) and that position did not change at all until” the Ofsted inspection was about to commence. I will be returning to the Ofsted inspection in more detail in due course (see Section 11 below) and to Dr O’Donovan’s perception of the preparations for it within Haringey. I should for completeness in this regard add that soon after what has been described as “the media storm” erupted after the verdicts in the criminal case were returned, but before the Secretary of State’s decision under challenge in these proceedings was announced on 1 December 2008, 67 head-teachers from State-funded schools in Haringey wrote to The Times praising the Claimant as “an outstanding public servant” and referred to her commitment and leadership in the education field and the improvements made in the Borough in the time she had worked there. They suggested that if she should be lost to Haringey “then our children and young people will lose one of their most effective, determined and committed champions.”

They referred to her role in transforming “a demoralised education service” and to the “exceptional rate of improvement of many of the borough’s schools [which] would not have been possible without the support of the service that [the Claimant] rebuilt, revitalised and led.”

[15]Notwithstanding those expressions of support from those who had had recent direct dealings with her, within a few weeks of the verdicts being returned in the criminal case, the Claimant had effectively been removed from her position as DCS on the direction of the Secretary of State based upon a report prepared urgently by Ofsted and within a short while thereafter was summarily dismissed by Haringey without compensation.

[16]The events and circumstances of her losing her job in this way lie at the heart of the applications before the court.

[17]Permission to apply for judicial review was granted on 1 May 2009 by Mr David Holgate QC, sitting as a Deputy High Court Judge, when he made the following observations:

“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.”

[18]He amplified the basis upon which permission was granted on 5 June 2009 when he confirmed that it had been his intention to grant permission to apply for judicial review of the second direction of the Secretary of State under section 497A(4B) (see paragraph 72 below) made on 19 December 2008 (see paragraph 364 below) and that it remained his view that the Claimant had “adequately justified making the challenge outside the 3 months period running from 19 December … and the contrary submissions do not cause me to change my mind on that aspect.” For the avoidance of doubt he granted an extension of time for making that challenge.

[2]The progress of the case

[19]The way in which this case has proceeded has, to say the least, followed a somewhat unusual course as anyone who has followed its progress will have appreciated. I reserved judgment following the hearing that ended on 12 October 2009 having agreed to receive a few further written submissions in the period shortly thereafter.

[20]I was in a position to indicate informally to Counsel during 5 November that I hoped to be able to hand down the judgment on Friday, 13 November. On Friday, 6 November, I received a letter from The Treasury Solicitor on behalf of Ofsted indicating that further documents had been discovered since the hearing which it was felt may have an impact on Ofsted’s duty of candour in the proceedings.

[21]As a result I directed the convening of a hearing on 10 November a transcript of which can be found, inter alia, on the Bailii website (http://www.bailii.org/) under the Bailii Citation Number: [2009] EWHC B35 (Admin). As a result of that hearing further directions were given concerning disclosure of documents and the filing of further evidence and written submissions. Following a further hearing on 11 December 2009 the timetable envisaged by those directions was varied and indeed the timetable that replaced it was itself modified further to accommodate the parties who needed further time to deal with the issues involved.

[22]There was indeed very significant volume of further disclosure of documents by Ofsted that has extended the period over which the evidence and submissions in the case were received. That process did not finally run its course until 18 March 2010 and on 19 March I indicated to the parties that I had reserved my judgment again in order to review all the new material and to re-visit the submissions and evidence previously put before me.

[23]I will have to return to aspects of that extended process in due course.

[3]The nature of the applications before the court

[24]Almost anything that happens in connection with ‘the Baby P case’, or with its wider implications, occasions comment. That is entirely to be expected and is, of course, a wholly welcome feature of any informed and balanced public debate about how tragedies of the nature that occurred in relation to Peter can be avoided in the future. Whether the outcome of the present court case has anything to contribute to that important debate will be for others to judge. However, any informed and balanced view of the consequences of the case before the court needs an understanding of the precise issues for consideration and the way in which the court deals with those issues. It does also require a clear appreciation of what this case is not about.

[25]It is none of a number of things including the following:(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;

(d) a claim for compensation by the Claimant.

[26]The claim is for judicial review of the Ofsted report and the process that led to it, the action of the Secretary of State to remove the Claimant from her statutory office based upon it and the actions of Haringey in dismissing her from her employment. In respect of each of these matters the Claimant effectively seeks a declaration that each resulted from legally actionable unfairness.

[27]Despite the large amount of evidential and documentary material placed before the court, the lengthy Skeleton Arguments and other written submissions and the need to trace the relevant history in some detail for the purposes of this judgment, the issues raised on the Claimant’s behalf are, in reality, quite narrow. I will return to identify them in paragraphs 28-29 below. There is, however, a broader, and important, issue of legal principle to be considered irrespective of the merits or otherwise of this case. It relates to the question of how a local authority employee whose position possesses a statutory status such as that which went with the Claimant’s position can enforce or protect their right not to have their contract of employment unfairly or wrongfully terminated when effectively removed from the job for which they have been employed by the local authority as a result of the dictate of central government.

[28]As I have already indicated, in essence it is argued on the Claimant’s behalf(i) that the investigation by Ofsted that led to the report upon which the Secretary of State relied for his decision was flawed by unfairness,

(ii) that the Secretary of State’s decision was in consequence unfair and/or unfairly arrived at for other reasons (and, in any event, was influenced by factors that ought not to have been taken into account) and

(iii) that Haringey then adopted an unfair process in deciding to terminate the Claimant’s employment. These allegations are denied by all parties and Haringey also submits that an Employment Tribunal is the correct venue for deciding on the fairness or otherwise of the termination of Claimant’s employment by Haringey.

[29]That brief recitation of the issues illustrates that the focus of the case, as I have already indicated, has been on the fairness or otherwise in the legal sense of the processes that led to the Claimant being replaced in her statutory post and subsequently dismissed from her employment. It is not maintained on the Claimant’s behalf that the Secretary of State did not have the power to do what he did. It is argued that he acted unfairly in the legal sense and that, accordingly, it is a decision that was flawed.

[30]I have already indicated (in paragraph 25 above) what these proceedings do not constitute. In the light of some of the submissions made to me, I think I should also emphasise firmly and clearly that my task has not been -(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.

[31]That does not necessarily mean that some of the evidence concerning the way in which the final version of the report emerged may not be relevant to the issue that does arise in the case to which I will refer in more detail in paragraph 36 below. But anyone reading this judgment hoping to see a conclusion about whether the final version of the report represented a 'beefed up' version of an earlier or earlier drafts will be disappointed.

[32]As I have already indicated, the relief sought does not of itself include a claim for compensation. The Claimant’s case is that she was denied the opportunity to have her say on the matters that led to her removal from her position before the report on which that removal was based was acted on by the Secretary of State. Mr James Maurici, who has represented her in these proceedings, has made clear that whilst success in this claim may assist a claim for compensation, it is not the main point for present purposes. These proceedings afford an opportunity for her to demonstrate that any conclusions made against her – including the statement made publicly the Secretary of State that she was “not fit for office” – were not made fairly.

[33]That then, in summary, is what the case is about. I need to say something at this stage about the evidence I have received and how I have approached its evaluation.

[4]The evidence and its evaluation

[34]Ordinarily, an application for judicial review is determined without hearing oral evidence. This approach reflects a number of considerations, but judicial review is essentially seen as a procedure for resolving an issue of law and not one of fact: see Fordham Judicial Review Handbook, 5th ed., at paragraph 17.3.

[35]There are certain (albeit rare) circumstances in which oral evidence is given and cross-examination takes place in judicial review proceedings: see Fordham, para. 17.4.8 et seq.

[36]There is in this case a potentially material issue of fact that, on one view, goes to the heart of the case. It relates to whether the Claimant had a fair opportunity to respond to matters upon which, in due course, critical comment was made in the Ofsted report upon the basis of which the Secretary of State’s decision was made. Her case is that not even the gist of what was said in the report to reflect matters of serious concern about safeguarding arrangements in Haringey was communicated to her during the inspection carried out by the Ofsted inspectors and, accordingly, she asserts that she had no opportunity to respond to these matters of concern. Ofsted asserts that she was given the opportunity to comment on the central concerns relating to her areas of responsibility in a series of meetings and interviews during the inspection and points to documentary evidence that demonstrates that this was so. I will, of course, be dealing with this issue in detail in due course (see Section 11 and paragraphs 410-490). For present purposes, I merely draw attention to the existence of the dispute.

[37]That issue of fact was clear from, at the latest, when the original witness statements started emerging. It was certainly plain by the start of the hearing in October 2009. No application was made to me by any party for an order for cross-examination at that time. It would, as I have indicated, have been an unusual application in judicial review proceedings and would undoubtedly have had the effect of prolonging the hearing. However, it is an application that could have been made either by Ofsted or by the Claimant given that they were the two parties most directly concerned.

[38]After the further disclosure by Ofsted and the receipt of the further written submissions, the issue was brought into further and arguably sharper relief. Mr Maurici contended that the new material supported the Claimant’s account and undermined that of the Ofsted inspectors and damaged their credibility. As a result, in written submissions dealing with this disclosure he invited me not to accept the evidence of Ofsted’s witnesses in so far as it conflicted with that of the Claimant. If I was not prepared so to do then, he submitted, the only alternative would be to order cross-examination of Ofsted’s witnesses.

[39]I was unwilling to approach consideration of the final form of the judgment with matters being left on that basis and the communication passing from me to the parties and the Claimant’s response to it are attached to this judgment as Appendix 1. The net result was that no application for cross-examination was made although continued reliance was placed by Mr Maurici on the observations of Stanley Burton J, as he then was, in S v Airedale NHS Trust

[2002] EWHC 1780 (Admin)

as to when the evidence of a witness can be rejected in the absence of cross-examination. He said this:

“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.”

[40]Whilst those observations were, of course, made in the context in which the factual dispute arose in that case and were doubtless intended simply as a general reminder of standard practice, I respectfully accept them as reflecting established trial practice. However, whilst I will bear that guidance in mind when appraising the evidence, I am less convinced than Mr Maurici suggests I should be that, as he submits, the post-trial disclosure provides in a number of respects “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)”. I will return to this where appropriate, but, whilst I accept that there are aspects of the further disclosure that give some grounds for questioning the precise accuracy and reliability of what some witnesses have said about some issues, that is not necessarily determinative of whether the evidence of a particular witness on a particular issue or more generally is “manifestly wrong”. It is a commonplace in all forms of litigation that a court may conclude that a witness is accurate and reliable about one matter, but not about another.

[41]Furthermore, when any suggestion that is tantamount to an allegation of dishonesty is made, it would be wholly exceptional, certainly in this kind of litigation, to reach such a conclusion without the witness being confronted with the suggestion in the witness box. It will be obvious that by the end of the prolonged process that constitutes the effective hearing in this case, I had received a considerable amount of written evidence in the form of witness statements and other documentation. However, none of the witnesses had been cross-examined and had put to them any countervailing evidence or any documents said to contradict or undermine their evidence.

[42]It is also important to note at this juncture that the general practice of the court when contested issues of fact arise in applications for judicial review is that “in so far as there are factual disputes between the parties, the court is ordinarily obliged to resolve them in favour of the defendant”: see, e.g., Al-Sweady & Ors (R on the application of) v Secretary of State for the Defence

[2009] EWHC 2387 (Admin)

, paragraph 17. I will return to this shortly.

[43]In the sequence of written submissions following the further disclosure by Ofsted, Mr Maurici has also raised issues concerning the possible destruction of material evidence after the disclosure that, at least for a limited time during the period of the Ofsted inspection, there was in existence within Ofsted an instruction to delete from "the system" e-mails relating to Haringey or the 'Baby P' case. He submits that the principle reflected in the Latin expression omnia praesumuntur contra spoliatorem (everything is to be presumed against the destroyer of evidence) should be invoked in this case and draws attention to Earles v Barclays Bank Plc

[2009] EWHC 2500

. I will, in due course, review the evidence and argument on this issue because, unsurprisingly, it is a matter that has caused me some considerable concern. That review appears in Appendix 2 to this judgment which should, of course, be treated as part of the judgment. My ultimate conclusion is that the principle cannot be invoked in the way Mr Maurici suggests and the reasons for that conclusion, along with others on the disclosure issue, appear in that Appendix.

[44]However, notwithstanding that conclusion and the general practice referred to in paragraph 42 above, there is another side to this particular coin. A considerable amount of evidence was served very shortly before the case started, some of which, as I have said, confirmed the factual gulf between, most particularly, the Claimant and the Ofsted inspectors about the conduct of the inspection and also between the Claimant and some of her erstwhile colleagues at Haringey in connection with the emerging conclusions of the inspectors. The lateness of this evidence is a matter upon which submissions have been made and I will indicate where, if I consider it relevant, those submissions have affected my approach to the evidence. The late service of evidence may, of course, have an impact on costs irrespective of the outcome of the case.

[45]Even before the extensive late disclosure by Ofsted, Mr Maurici had pointed to what he said were failures in disclosure of relevant documents by all Defendants. As will become plain at later stages in this judgment, some of those complaints were, in my view, justified. As subsequent events demonstrated, they were clearly and unequivocally justified in relation to Ofsted. However, given that general background, and notwithstanding that I have not been invited to direct cross-examination of any of the witnesses, I have taken a somewhat more liberal approach to my evaluation of the evidence than reflected in the general practice to which I referred in paragraph 42 and I have paid particularly close attention to such contemporaneous documentation as has been revealed: see Fordham Judicial Review Handbook, 5th ed., at paragraph 17.3.6(B). However, it should be understood that, save where I have felt obliged to indicate the direction in which, in my view, the inherent probabilities and/or the preponderance of the evidence points on any material issue of fact which goes to the question of whether the grounds for judicial review are made out, I have formed no view (certainly none that would bind another court or tribunal) on the credibility or reliability of any of the witnesses or upon their character, competence or capacity to deal with any of the actions that each was called upon to perform at any time during the period relevant to the applications before the court. Observing someone giving evidence and being challenged in cross-examination is an inestimable advantage when it comes to matters of that nature.

[5]Some preliminary observations

[46]Given the intense media and public interest that there is in Peter’s case, particularly in connection with the Claimant’s position in relation to it, there are a few matters I should make plain at the outset given some of the issues I have been asked specifically to consider. Most of the points will be well understood by lawyers, but since it is possible that this judgment will be read beyond the legal fraternity I have felt it sensible to state them.

[47]First, there is a suggestion that the Secretary of State’s approach to the issues raised following the verdicts in the criminal case and his decision of 1 December 2008 was motivated by political (including party political) considerations. Since the issue has been raised I cannot avoid making reference to it and I shall be dealing with it in due course. However, I wish to make it abundantly clear that, consistent with the position that any court would adopt, political matters are quite outside the boundaries of any area that the court would enter voluntarily. No kind of political stance should be construed from any aspect of the conclusions reached in this case.

[48]Second, the Claimant is undoubtedly of the view that she has been subject to press and media interest and intrusion that has gone beyond an acceptable threshold, a view that appears to have been shared by others and, at least to some extent at some stage, according to an interview in the papers before me, by the Secretary of State himself. Again I cannot avoid reference to the involvement of the press in relation to some parts of the background since it forms a significant feature of that background and may have a bearing on at least one important feature in the case. However, anything I say about the press interest should not be seen as either condemning or condoning what has occurred. There will be those who consider the press interest in the Claimant to have been entirely appropriate and called for; there will be those who consider it to have been unfairly personalised and unnecessarily and aggressively intrusive. That is a matter of personal opinion and taste. My position on this issue must be one of neutrality. No issue of law arises from it although, as I shall observe in due course, it is a well-recognised consequence of allowing the discussion of any serious issue to become personalised that the issue itself can become obscured and devalued. It is arguable that that has occurred in some respects in this case. Furthermore, the extent to which the circumstances of the Ofsted inspection were affected by the press and media interest at the time is an issue that cannot be avoided.

[49]Third, I can deal with the issues and arguments in this case only on the basis of the evidence put before me. I have already alluded to issues that have arisen concerning the disclosure of material in the case and I have indicated how I have gone about evaluating the evidence I have received in the light of those considerations (see Section 4). But the point to be made (which is very much a reflection of the nature of the proceedings before me) is that ultimately I can deal with the case only on the basis of what the parties choose to put before me, the assumption being made that all parties (particularly the public authority defendants) have complied with the duty of candour expected of them. I am quite certain that I have not seen every piece of paper and every electronic communication concerning the background to the events in this case: indeed I should emphasise that in the ordinary course of this kind of litigation I would not have expected to do so. For example, whilst exhibited to Ms Pugh's witness statement (and thus disclosed) on behalf of the Secretary of State were some 40 or so e-mails passing between various parties during 2008 (and earlier) until the e-mail from Orla Delargy to Mr Mike Snowdon at Haringey just after Prime Minister's Questions on 12 November 2008 (see paragraph 128 below), no further e-mails were disclosed until the e-mail exchange late on 30 November when the Ofsted report was sent to DCSF officials (see paragraphs 284-286 below). Equally, no internal notes or other documentation within the DCSF were disclosed during the period of the Ofsted inspection and the preparation of the report until its formal presentation to the Secretary of State on the morning of 1 December with the exception of a briefing document for the Secretary of State dated 21 November (see paragraph 500 below) setting out the various options for intervention depending on the conclusions of the Ofsted report. It is quite plain that other e-mails passed during this period (many in fact disclosed by Ofsted) and other documents would have been generated. Meetings and contact undoubtedly took place between Ofsted officials and DCSF officials during this period: that has never been concealed and Ms Pugh's witness statement mentions most, if not all, of them. I have to approach matters on the basis that nothing remains to be disclosed, either by way of a further statement or by way of the revelation of further documents, that would support the Claimant's case against the Secretary of State or would undermine his answer to that case. The same applies to all other parties.

[50]Fourth, although I have received extensive written and oral submissions, and have received a very large volume of further documentation as a result of the further disclosure by Ofsted, I have focused on those submissions which have appeared to me to lend the greatest weight to each party’s case or otherwise needed to be addressed. If arguments or documents are not referred to specifically in the judgment it is because my assessment is that they are unlikely to have made a material difference to the outcome. It is, of course, open to others to take a different view, but dealing with the case in any other way would have lengthened the period for preparing this judgment which has not seemed to me to be in anyone's interest.

[51]Finally, because of the interest in the case and the possibility of a wider readership of this judgment than merely the parties and their advisers, I have endeavoured to draft it in an accessible style. Whether that objective has been achieved will be for others to judge, but that is what I have set out to do.

[6]The statutory background

[52]Before turning to the facts that give rise to the issues before the court, it would be helpful to set out the general statutory background to those issues and introduce some of the concepts that need to be understood in order to appreciate the issues that arise.

[53]I have already mentioned in passing the Victoria Climbié case and Lord Laming’s report. Victoria died at St Mary's Hospital in Paddington on 25 February 2000 at the age of 8. She came from the Ivory Coast in Africa initially to France, and then to the UK in April 1999 in order to have a “better life”. It was intended that she be looked after by her aunt and her aunt's partner to whom she was sent. She suffered dreadful ill-treatment at their hands resulting in her death. On 12 January 2001 they were both convicted of her murder and sentenced to life imprisonment.

[54]During the period before Victoria’s death she had been subject to child protection arrangements within Haringey. It was plain that the agencies with responsibilities for her protection failed to afford her the protection to which she was entitled. Those agencies included the Social Services department at Haringey, the local health authorities and the police.

[55]In April 2001 the Government set up a statutory inquiry into Victoria’s death and appointed Lord Laming to conduct that inquiry and to produce a report. The report was published in January 2003. In summary, it was critical of the failure of all the agencies to protect Victoria or to share vital information with each other. The report made a substantial number of recommendations. In September 2003 the Government published a response to the report and to a research report of the Joint Chief Inspectors, the response being entitled ‘Keeping Children Safe’ (Cmnd 5861). At the same time it published the Green Paper ‘Every Child Matters’ (Cmnd 5860) (‘ECM’). ECM went further than proposals simply for the protection of children and set out what was described at the time as a “hugely ambitious agenda” for the provision of improved services for all children within a locality. Following consultation on ECM, the Children Act 2004 was enacted.

(i) general

[56]The essential thrust of the proposed legislation in terms of those with responsibility for overseeing the new regime was set out in ECM at paragraph 16 as follows: “ … 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 forlocal authority education and children’ssocial 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 SafeguardingChildren Boards as the statutory successors to Area Child Protection Committees. (ii) local

• legislate to create the post of Director of Children’s Services, accountable forlocal authority education and children’ssocial services

• legislate to create a lead council member for children

• in relation to child protection, require the creation of Local SafeguardingChildren Boards as the statutory successors to Area Child Protection Committees.

[57]The ‘locality’ feature of the new regime is defined by reference to “a children's services authority” (a ‘CSA’) – see section 11(1)(a) - which “must make arrangements for ensuring that their functions are discharged having regard to the need to safeguard and promote the welfare of children” – see section 11(2). “Each person and body to whom [section 11] applies must in discharging their duty under this section have regard to any guidance given to them for the purpose by the Secretary of State”: section 11(4).

[58]Section 13 provides for the establishment by each CSA of a “Local Safeguarding Children Board for their area.” The objective of a Local Safeguarding Children Board (‘LSCB’) is “(a) to co-ordinate what is done by each person or body represented on the Board for the purposes of safeguarding and promoting the welfare of children in the area of the authority by which it is established; and (b) to ensure the effectiveness of what is done by each such person or body for those purposes”: section 14(1). The functions of an LSCB include “undertaking reviews of serious cases and advising the authority and their Board partners on lessons to be learned”: regulation 5(1)(e), Local Safeguarding Children Boards Regulations 2006. I will refer to the relevant statutory guidance concerning LSCBs below (see paragraph 62 et seq below).

[59]Section 18(1) provides for the appointment by each CSA of “an officer for the purposes of –(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.”

[60]The functions specified in subsection (2) include(a) the “functions conferred on or exercisable by the authority in their capacity as a local education authority” and

(b) the “functions conferred on or exercisable by the authority which are social services functions … so far as those functions relate to children”.

[61]The officer appointed under this section “is to be known as their ‘director of children's services’” (the ‘DCS’): section 18(4). I will deal later (at paragraph 76-77) with the statutory guidance given by the Secretary of State in relation to the role of the DCS (and also of the ‘Lead Member’).

[62]In 2006 the Government published ‘Working Together to Safeguard Children - A guide to inter-agency working to safeguard and promote the welfare of children’. Chapters 1-8 were issued as statutory guidance. Chapter 3 deals with LSCBs and Chapter 8 deals with ‘serious case reviews’ (SCRs).

[63]As to LSCBs, one or two provisions are directly relevant to some of the issues that are raised in this case. The role of the LSCB is described in the following paragraphs:

“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.”

[64]With respect to the role of an LSCB in relation to a child death, the following is promulgated:

“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.”

[65]The Chair of the LSCB is seen as a crucial role within the overall framework:

“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.”

[66]The guidance given in relation to SCRs includes the following: “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.”

• 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.

[67]An LSCB establishes a Serious Case Review Panel (‘SCRP’) “involving at least LA children’s social care, health, education and the police” which then makes a recommendation to the Chair of the LCSB on whether to initiate an SCR. The SCRP also gives consideration to the scope of any such review and its terms of reference. The guidance provides that “[each] relevant service should undertake a separate management review of its involvement with the child and family [which] should begin as soon as a decision is taken to proceed with a review, and even sooner if a case gives rise to concerns within the individual organisation.” The role of the LSCB at the conclusion of the review is set out as follows:

“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.”

[68]Ms Pugh, who is the Director of the Safeguarding Group at the DCSF, says in her witness statement that an SCR “comes in three parts: the overview report, the supporting, detailed individual management reports and the executive summary of the overview report which is the only part of the report that is published”. The following is specified in relation to the overview report:

“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.”

[69]It is right to point out and emphasise in passing that the Government’s guidance referred to in paragraph 65 above indicates that it is perfectly acceptable for someone such as the DCS to chair the LSCB. I understand that at the time with which the events of this case are concerned about 70% of LSCBs were chaired by the DCS. The Chief Inspector, when giving evidence on 10 December 2008 (see paragraph 7 above), said that there were 150 relevant local authorities and did not contest the suggestion put to her that only 50 had independent Chairs of the LSCB. To the extent that the Claimant has been subjected to criticism for taking on this role at Haringey, it is at least possible to see why she has felt such a criticism was neither justified nor fair in the light of what was, numerically at least, widespread practice at the time - unless, of course, there was something particular about Haringey that demanded the Chair of the LSCB to be wholly independent. Since it was not something that had attracted adverse comment from Ofsted previously in its inspections – indeed the Claimant’s role in this regard had been praised (see paragraph 84 below) - nor was it something insisted on by the Chief Executive or the Leader of the Council, many would think that the Claimant had some justification for feeling aggrieved about this. It appears that the true meaning of “independence” was still a matter of debate at that time because, in the evidence given by the Chief Inspector on 10 February, she said that Ofsted felt that there was a need for a wider debate on “what independence means” in this context. I will be returning to the matters of criticism in due course but, despite the observation I have just made, it is clear (and indeed undisputed) that the Claimant did speak to the inspectors about this matter (see paragraph 446 below). (iii) Ofsted and other inspections

[70]Section 20 provides for Joint Area Reviews. Since points arise on the arrangements made in this case for the Joint Area Review (‘JAR’) I should set out the relevant provisions of section 20:

“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 …”

[71]The “arrangements” referred to in section 20(5) are known as “the Published Arrangements” and I will refer to them later at paragraph 170. (iv) Governmental intervention

[72]The other statutory provision of importance in the context of the matters before the court is section 497A of the Education 1996 which, by virtue of section 50(1) of the 2004 Act, is made to apply “in relation to the relevant functions of a” CSA. Section 497A provides as follows:

“(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.”

[73]It was under that section that the directions of the Secretary of State on 1 December 2008 (see paragraph 301 below) were made.

[74]Whilst dealing with the overall statutory framework, it would be convenient to make reference to the statutory guidance given by the Secretary of State in relation to the roles of the DCS and the LM (the ‘Lead Member’).

[7]Guidance on the duties of the DCS and LM

[75]The guidance is contained in a document entitled ‘Statutory guidance on the roles and responsibilities of the Director of Children’s Services and Lead Member for Children’s Services’. It affords “[guidance] on the governance, leadership and structures required within the new strategic framework”. As to the status and origins of the document, this is set out in the document itself:

“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.”

[76]In relation to the Director of Children’s Services the roles are described thus:

“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.”

[77]There is a further definition of what “accountability” means in this context:

“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.”

[78]So far as the Lead Member’s role is concerned, the roles are described in this way:

“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.”

[79]I will return to the potential significance of this guidance in relation to the issue of “accountability” of the DCS in due course (see paragraphs 384-386 below).

[80]I will shortly turn to the material events that underlie these proceedings. Before doing so I should mention briefly the history of Ofsted’s involvement with Haringey in the period before the inspection to which I will be referring in more detail below.

[8]Previous Ofsted involvement

[81]Haringey’s CYPS was the subject of a Joint Area Review (see paragraph 166 et seq below) in 2006. This was carried out in accordance with the Published Arrangements (see paragraph 170) during May and June 2006. Ms Ryan (see paragraph 185 below) was the Lead Inspector for this JAR.

[82]The report was published on 10 October 2006 and concluded overall that Haringey’s children services overall were “good” and its social care services for children “adequate”. It was said that “[outcomes] for children and young people in Haringey are adequate and improving … [and children and young people] are generally safe”. It was said that child protection work was “generally of a satisfactory standard” with “most performance indicators … in line with those in comparator authorities”, thus reflecting “good and sustained improvements in practice and management since 2001 when practice was poor.”

[83]There were areas of concern that can be summarised in this paragraph:

“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.”

[84]The LSCB, of which the Claimant was, of course, chair, was referred to approvingly and it is concluded that she “provides strong and dynamic leadership and is supported by many examples of good leadership and management at all levels”.

[85]An Annual Performance Assessment (‘APA’, see paragraph 169 below) was undertaken by Ofsted in 2007 partly to determine what progress had been made since the recommendations of the 2006 JAR. The results of the 2007 APA were communicated to the Claimant in a letter dated 26 November 2007, some 3 months after Peter’s death, and characterised the “overall effectiveness of children’s services” and “staying safe” as “good”. It was said that Haringey had “demonstrated good progress in meeting the joint area review recommendations”, referring to the 2006 JAR. The LSCB was commended.

[86]An APA for 2008 was undertaken. There appears to be some controversy surrounding it and about whether the effect of it was changed in the light of the Ofsted report with which this case is concerned. I would merely state for the record that I have not been asked to consider its implications, if there are any, for the purposes of this case.

[87]I will return now to the material events that underlie this case. I propose to divide this into three periods: the period from Peter’s death until 11 November 2008, the period from 11 November to 1 December 2008 and the period from 2 December 2008 until 12 January 2009. The crucial periods from the point of view of the applications before the court are the second two periods. The first has relevance, of course, but I propose to deal with it more briefly than the others.

[9]The material events from Peter’s death until 11 November 2008

[88]A serious case review into Peter’s case was initiated by Haringey LSCB on 6 August 2007 (which was the day the post-mortem on Peter was carried out) and a Serious Case Review sub-committee formed to carry out the SCR with the Claimant as chair. According to the Claimant’s uncontradicted evidence, this was decided after discussion with Dr O’Donovan and, from the Claimant’s perspective, she took on this role because of “the seriousness of the case and [her wish] to demonstrate commitment and accountability.” She has said that she “acted as facilitator [in] the process [that] was led by the independent reviewers.” The scope of the SCR was agreed within Haringey on 8 August 2007.

[89]Ofsted, which is responsible for evaluating SCRs, was notified of the decision to initiate an SCR on 6 August 2007. On 13 August the DCSF was notified formally of Peter’s death by Ofsted although it appears that it was also notified of the case by the Department of Health on 10 August. An internal e-mail within the DCSF on 14 August from an official in the Children’s Safeguards Policy Unit to the then Parliamentary Under Secretary of State, with copies to relevant officials including Mr Peter Lauener (Head of the Local Transformation Group at the DCSF) and Ms Pugh (see paragraph 68 above), ensured that there had been an initial briefing both to Ministers and officials. It refers to the intention to carry out an SCR.

[90]The Government Office for London (‘GOL’) was also alerted to what had happened. There is an e-mail from Cecilia Hitchen to the Claimant dated 10 August 2007 indicating that she had briefed Frank McGhee at GOL that afternoon. GOL represents central government across London including the DCSF and its role in this context is described by Ms Pugh in these terms:

“… 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.”

[91]In relation to SCRs generally Ms Pugh also said this:

“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.”

[92]The Claimant has described the background to the method of working adopted in relation to the SCR as follows:

“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.”

[93]According to the Claimant (whose evidence on the issue is not contradicted), draft terms of reference for the SCR were originally formulated in August/September 2007, but they had to be approved by GOL and the relevant officer at GOL did not provide comments on the draft until December 2007. Mr Maurici says that civil servants for whom the Secretary of State, not the Claimant, was responsible occasioned this delay, but notwithstanding this the Claimant and Haringey are blamed for it by Ofsted. This observation was in response to the suggestion of Ms Brown that she “would not accept that the alleged failure on the part of the GOL justifies the delay [since] the responsibility for conducting the SCR lies with the LSCB and, in particular, the SCR sub-group [of which the Claimant] was chair of both bodies.” It is unnecessary for me to form any view about this save to note that the Claimant on 27 November was expressing the view to her Deputy and Mr McGhee that the need to finalise the terms of reference was “getting urgent”.

[94]The Claimant says that the sub-committee met on several occasions between September 2007 and July 2008 (24 September, 15 November, 7 and 18 February 2008, 18 March, 4 and 14 April, 13 May, 13 June and 8 July) and weekly during the criminal trial. According to Ms Pugh, there were seven meetings between Haringey (particularly with the Claimant as the DCS and Chair of the LSCB) and GOL during the period prior to the conclusion of the criminal trial of which three were attended by DCSF officials.

[95]According to the Claimant, a first draft of the SCR was available in January 2008 but that it could not be finalised because of expert medical advice that Great Ormond Street Hospital wanted to commission. Once a further draft had been prepared in March 2008 she discussed it with GOL and representatives of DCSF. There were further discussions in April. An internal e-mail at the DCSF dated 6 May recorded the position in these terms:

“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 ….”

[96]It appears from a further e-mail to Ms Pugh dated 22 May that the draft report was available but was being “reworked to incorporate the recent health report and to make the analysis more robust”.

[97]According to the Claimant, the SCR was approved by Haringey in July as a final draft following much discussion between Haringey and GOL. On 17 July 2008, she sent the final draft of the SCR and its Executive Summary to GOL.

[98]During August various e-mails between the DCSF and GOL referred to concerns that the SCR and the case generally would receive adverse publicity and could be used to suggest that the Government’s policy after Lord Laming’s report had been unsuccessful. In September it became apparent that a ‘Panorama’ programme was being prepared dealing with ECM and child protection matters. The trial of those charged with offences arising from Peter’s death commenced on 8 September.

[99]On 22 August 2008 the Claimant took part in media training with an independent training company along with Haringey’s Chief Executive, Leader of the Council and Lead Member, including a trial run of a press briefing with the Chief Executive of Great Ormond Street Hospital. There was a further session of media training on 15 October 2008 and it is clear that the DCSF had been involved in discussing the press strategy once the verdicts in the criminal case had been returned.

[100]As will be apparent below (see paragraph 117), the final version of the draft executive summary was made available to Ms Pugh on 6 November.

[101]Mr Maurici makes the comment that the SCR was discussed with officials in GOL (which had been involved with SCRs being carried out by other local authorities) and the DCSF throughout 2008 with no suggestion ever being made that the role of the Claimant as chair was a problem. This is to be contrasted with the position taken by Ofsted following the urgent review with which this case is concerned. I have already observed that the Claimant’s position as Chair of the LSCB at Haringey was by no means unique when assessed by reference to the practice throughout the country at the time: see paragraph 69 above.

[102]Other things occurred during the period under review including, in September 2007, the commissioning by Dr O’Donovan of an audit from an independent consultant, Ms Margaret Doe, in relation to child protection cases. It took place between 29 October 2007 and 9 November 2007 and the report became available on 16 November 2007. It concluded that “good quality social work to children and families within the Borough [was provided] with a generally sound management group supported by clear leadership from the Deputy Director.” There were a number of positive themes in this report, including reference to the sense of teamwork and support within the department and the loyalty to the Borough of staff within it. However, there were criticisms based upon a random audit of what turned out to be 45 children’s files. The management oversight of files was not universal: 16% were regularly supervised and 49% had some supervision notes (although the notes were “often minimal and lacked detail”), whereas 35% had no supervision notes on the file. The report indicated that where there was no evidence of management oversight, the files “lacked clarity and focus on actions or planning for the children.” It was recognised that this was an area that required attention. Initial assessments seen were said to be “generally of a good quality” although the quality of core assessments “varied”. This was an area identified as requiring improvement. There was some evidence of a “slow response to referrals with actual and potential child protection concerns.” Ms Doe recorded that “[although] some of the cases had already progressed and had not been updated on the system there was recognition that certain children’s situations needed action.” Reference is made to recruitment difficulties and to the shortcomings of some agency staff. The difficulties of securing multi-agency co-operation is also referred to.

[103]At about the same time Ofsted issued the 2007 Annual Performance Assessment (see paragraph 169 below) for Haringey, concluding that overall Haringey “delivers a good service for children and young people” and that it had taken swift action to act on the recommendations of the JAR undertaken the year previously (which itself had been generally favourable).

[104]In April 2008 a further report by Margaret Doe was commissioned into the extent to which the recommendations of Lord Laming’s report had been put into practice at Haringey. On 12 May 2008 the report, entitled "The Haringey Borough Council Evaluation Report", was produced. Ms Doe emphasised that the report was “based in the main on written material” and that there had been “no interviews with key staff or stakeholders.” She concluded that Haringey and the LSCB had “responded robustly” to the Laming recommendations and that Haringey had “come a long way since the Laming inquiry.” She said the progress was “tangible, clear and unequivocal.”

[105]The essential feature, however, of this period for the purposes of this case was the production of the SCR. I have not been shown the SCR (the full version of which, in any event, remains confidential), but I understand from other documents in the case that its key findings were that there had been a great deal of professional input over the months of the child protection plan for Peter, but that many factors contributed to the failure of the agencies involved to understand what was happening to him. With, it was said, the possible exception of the long awaited paediatric assessment on 1 August 2007, no single factor was likely to have prevented the tragic outcome. Various recommendations were made for the LSCB, the health agencies and others, including the police. A total of 15 recommendations were made for the Haringey CYPS including ensuring that all known parents of a child are informed of concerns about the child, are consulted on plans, invited to child protection conferences and included in core groups.

[106]As will become apparent in due course, this report was assessed in due course to have been “inadequate” by Ofsted following the request from the Secretary of State to which I will be referring later.

[107]I must now turn to the events that ensued after the jury returned its verdicts in the criminal trial.

[10]The sequence of events from 11 November 2008 until 1 December 2008

[108]This is the period between the return of the verdicts by the jury in the criminal trial (see paragraph 3 above) until the decision and directions of the Secretary of State in relation to the position of DCS within Haringey (see paragraph 301 below).

(i) 11 November 2008

[109]The jury returned their verdicts just after 11.30 on the morning of Tuesday, 11 November. In accordance with the standard practice, the executive summary of the SCR was published after the convictions were returned. It was published on the Haringey website. I have summarised its general effect in paragraph 105 above.

[110]Also following the jury’s verdicts, a press announcement was made by the then Minister of State for Children, Young People and Families, Beverley Hughes MP, indicating that Lord Laming had agreed to prepare a report on progress made across the country in implementing the reforms set in train following his earlier report. That announcement was made around about 1pm.

[111]A joint press conference between Haringey and Great Ormond Street Hospital (which was responsible for the paediatrician who saw Peter on 1 August) was held that afternoon in a London hotel at about 2pm. The evidence demonstrates that it was a highly charged occasion coming, as it did, only hours after the jury’s verdicts. The Claimant herself has said that she and the representative of Great Ormond Street hospital “faced a hostile room of people” and that, when she reflected subsequently on what had happened, felt that it had plainly gone wrong and that the strategy adopted was a “disaster”. She accepts that an unfortunate interchange allowed the suggestion to be made in the press that she would not apologise to Peter’s father for what had occurred whereas, she says, the truth was that she had written to him appropriately at a very early stage following Peter’s death. However, that, plus her resistance to the suggestion that she should resign, prompted, on her account, a hostile press attitude to her thereafter. In addition to that press conference she gave about 15 other media interviews that day. One thing she said (which was reported widely subsequently) was to the effect that it was impossible to “stop people who are determined to kill children”. It was an observation that led to adverse comment in the press including the comment that it demonstrated complacency. I will return to the press coverage below, but I should complete the sequence of events for that day.

[112]Within the DCSF, there was a meeting between Beverley Hughes and officials at about 6pm to discuss what kind of review should be carried out to see if Peter’s case was indicative of wider failings within Haringey. That involved, according to Ms Pugh, the possibility of an Ofsted inspection rather than a diagnostic review by independent consultants. An issue has been raised about the correctness of that assertion and it is fair to say that an e-mail sent by Ms Hughes’ Private Secretary at 20.02 suggests that reference to Ofsted in this meeting was in relation to the possibility of seconding someone from Ofsted (a lead inspector) to assist Lord Laming rather than in the context of preparing a report on the child safeguarding services in Haringey. Furthermore, in her e-mail to Mr David Bell later that evening (see paragraph 115 below), Ms Pugh says that “a diagnostic review looks like a strong possibility” in the context of further work that was needed with Haringey. (Mr Bell, I should record, is the Permanent Secretary at the DCSF and thus its most senior civil servant.) At all events, I do not consider that anything turns upon the question of whether Ofsted was identified at that meeting as a possible source of the report. The evidence (see paragraph 125 below) is clear that by the following morning Ofsted had been so identified. I should record that the same e-mail recorded the suggestion that Ms Pugh should speak to the Claimant about a diagnostic review and to the Chief Executive of Haringey and the Council members about whether disciplinary action was contemplated.

[113]The Chief Executive of Haringey, Dr O’Donovan, took the Claimant out to dinner that night. The Claimant’s perception was that it was to thank her for all she had done. Dr O’Donovan says that it was a “gesture of support and kindness after what [had been] a long day.” It was not, she says, because she had made a judgment about the Claimant’s performance at the press interviews: she had not, she said, seen the interviews.

[114]Others had, however, seen some of the interviews and were supportive of the Claimant. The Chief Executive of the National Children’s Bureau, Mr (now Sir) Paul Ennals sent her an e-mail shortly before 10pm saying “well done, Sharon, on how you have been handling the media attention over this case. Seriously tricky stuff, but you have been getting the tone just right.” A little after midnight, the Assistant Chief Executive (People & Organisational Development) at Haringey, Stuart Young, sent an e-mail saying that he hoped all was “OK” and added “ … think you did very well on the news tonight.”

[115]Others were not quite so sure that she had struck the right note, however. In a late night exchange of e-mails between Ms Pugh and David Bell some concerns were raised. Mr Bell asked the question “Where is Sharon in all of this? Is she under threat?” Ms Pugh replied in these terms:

“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.”

[116]Ms Pugh was obviously aware that the story would be at least front page news in some newspapers the following day because she mentioned in one of her e-mails The Guardian’s article which contained the graphic computer-generated images of some of the injuries sustained by Peter. She said that she would “take stock” with Ms Hughes in the morning “when we see how things are playing out.”

[117]I should record in passing that she told Mr Bell that the Prime Minister’s brief for Prime Minister’s questions had been updated and that one thing she needed to do was “to get hold of the full SCR report now and do some detailed analysis for Ministers.” I mention this latter comment because Mr Maurici draws attention to evidence that suggests that the “full SCR report” had been supplied to Ms Pugh by the Claimant on 6 November. Ms Pugh accepts that on that day she was sent “the current draft overview report” of which she asked a Departmental official to produce an analysis. That was done on 7 November and the analysis supplied to Ministers. The full SCR would, she says, include the detailed individual management reports and the executive summary of the overview report. She already had a draft of the executive summary (provided on 21 October) and now she had the draft overview report, but not the “full SCR”. The “full SCR” was not received until it was sent to the DCSF by the Government Office for London (GOL) during the morning of 12 November (see paragraph 126 below).

[118]I see no reason not to accept that account of what occurred, certainly given the way in which evidential matters are normally dealt with on an application for judicial review. It affords an explanation for the way the Prime Minister and the Secretary of State expressed themselves publicly about when Ministers and officials first saw the full SCR report.

[119]I have deviated slightly from the chronology to deal with that issue. I will now turn to Wednesday, 12 November. (ii) 12 November 2008

[120]In the material before me, there are extracts from the following daily papers for 12 November: The Telegraph, The Times, The Times Scotland, The Daily Express, The Daily Mail, The Daily Mirror, The Daily Sport, The Daily Star, The Sun, The News Letter (Northern Ireland), The Metro, The Irish Daily Mirror, The Independent, The Guardian and the Londonpaper. All were very critical of Haringey and the Claimant was mentioned in many of them. Several said that she had failed to apologise and quoted the comment referred to in paragraph 111 above. This general theme was doubtless reflected in television and radio commentaries on the case that day and on the Internet.

[121]Ms Hughes appeared on GMTV that morning and, according to one of the press reports in the material before me, had raised the issue of whether “senior officials should be held accountable” for what had happened.

[122]The Claimant says, and there is no reason to doubt it, that the press had gathered outside her flat that morning and she was unable to leave until mid-morning. She had received a telephone call early that day from Ms Pugh indicating that there was likely to be some form of review of safeguarding in Haringey - as had been agreed at the Ministerial meeting the night before (see paragraph 112 above). The suggestion was that they would meet the following week to discuss this, the intention being, as Ms Pugh put it, to work with the Claimant with a view to being supportive. Mr Maurici makes the fair point that this suggested that no immediate urgency for such a review was perceived by Ms Pugh at the time.

[123]That morning the Secretary of State made a written Ministerial statement to the House of Commons under the heading “Safeguarding Children”. Ms Pugh indicates that this was sent to the Parliamentary Branch at 10.15 am and was in the following terms:

“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.”

[124]The Ministerial statement also announced that the Secretary of State had asked Lord Laming to prepare an independent report of how reforms introduced following his inquiry were being implemented across the country, thus reflecting the press announcement made the day before.

[125]At 10.20 am Ms Hughes had a meeting with officials at which, according to Ms Pugh, the Minister asked officials “to give urgent consideration to whether an Ofsted inspection would be an appropriate course of action and, if so, whether it should be carried out jointly with [the] Commission for Healthcare Audit and Inspection and Chief Inspector of Constabulary.” It had been suggested on the Claimant’s behalf that the idea of an Ofsted inspection did not emerge until after Prime Minister’s Questions (see paragraph 128 below). However, Ms Pugh, in a witness statement dated 2 October, has exhibited her contemporaneous handwritten notes of this morning meeting which demonstrate that the option was indeed considered at that time. Mr Maurici says that no reference to this meeting had been made prior to it being revealed in a letter from the Treasury Solicitor dated 25 September. That may be so, but since no suggestion is or could be made that such a meeting did not take place, it takes his argument no further. He is, however, on stronger ground when he contends that there was nothing in the Ministerial statement referred to in paragraph 123 that suggested any urgency in reviewing the SCR with a view to deciding “whether there needs to be a further investigation of child protection procedures and practices among local agencies in Haringey” and that there is nothing in Ms Pugh’s contemporaneous handwritten notes of the meeting on 12 November to suggest that urgent contact was to be made with Ofsted. As recorded below (paragraph 135 et seq), the first contact made by the DCSF with Ofsted was not made until early afternoon.

[126]It was during this period of the day (ie. between about 9.30 and 10.30 am) that the full SCR was being received by the Department. Ms Pugh indicates that consideration was being given to it by officials and Ministers during the day after it had been copied and circulated.

[127]According to the Claimant, when she did arrive in the office, those who met her were supportive of how she had handled the previous day. She says that Stuart Young congratulated her on how she handled the press conference and described her as “our heroine”. He has not specifically admitted making this comment, but has not denied it either.

[128]Soon after this, and whilst she was in a meeting with the Leader of the Council, the Chief Executive and others, the Claimant received a telephone call from David Lammy MP, a local Member of Parliament, who alerted her to what was taking place in the House of Commons. The “Baby P” case and its consequences were raised during Prime Minister’s Questions which, I understand, took place at about midday and the relevant interchange shortly thereafter. It would, I think, be inappropriate for me to comment on the exchanges between the Prime Minister and the Leader of the Opposition reflected in the Hansard record I have seen and which is, of course, available for anyone to see, save to say that the Claimant’s description of them as “heated” and Ms Pugh’s description of them as “robust” would each be fair. The Claimant’s name was mentioned twice by the Leader of the Opposition and one feature raised was the appropriateness of her having chaired the LSCB Serious Case Review Sub-Committee.

[129]At 12.38 pm, Orla Delargy, a Senior Information Officer at DCSF (to whom reference was made by Ms Pugh in her e-mail to David Bell the night before: see paragraph 115 above), sent an e-mail to Mr Mike Snowdon in Haringey’s press office headed “to be aware” saying as follows:

“There was a fierce exchange at PMQs re Baby P. Story is being ramped up and we’re being asked to ‘take over’ Haringey. Early heads up.”

[130]A number of telephone calls were made from the DCSF to Haringey over the next hour or so. There is no record, or set of records, before the court from which the precise sequence can be determined, but it seems to be common ground that Ms Hughes spoke to the then Leader of the Council, Councillor Meehan, on a number of occasions and Ms Pugh and David Bell held a speakerphone (in other words, a tripartite) telephone conversation with Dr O’Donovan early in the afternoon.

[131]Although the Claimant was not a party directly to any of these conversations, her perception was that requests were being made that she be suspended. She says that both the Leader of the Council and the Chief Executive said that the calls they had received had been “about suspending” her. I think I should record what Ms Pugh and Dr O’Donovan have said about these matters. Ms Pugh said this:

“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 Sharon Shoesmith'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.”

[132]According to Ms Pugh, Ms Hughes has also confirmed to her that she had a number of conversations with the Leader of Haringey Council around this time and that on no occasion did she demand the Claimant’s suspension. She fully recognized, Ms Pugh records, that the Claimant’s employment was a matter for Haringey and she recalled a conversation with the Leader on 12 November when he told her “very clearly that Haringey had no intention of suspending the Claimant.”

[133]Since Ms Pugh accepts that one of the options mentioned was the Claimant’s suspension, and since the Claimant’s own perception of the subject matter of the conversations was that they had raised her suspension, I think that the preponderance of the evidence supports the conclusion that it was indeed discussed. Indeed the inherent likelihood, given the need for an investigation of the workings of the safeguarding services at Haringey, would be that suspension whilst the investigation continued of the Head of those services would be considered, though not necessarily implemented. However, I would be unable to conclude that the DCSF sought to “demand” the Claimant’s suspension even though, understandably, that may have been how the Claimant perceived it and, had it occurred, it might have taken some of the heat being generated at the time out of the situation.

[134]At all events, I am not sure that the issue is central to what falls to be considered in this case. It is common ground that both the Leader and the Chief Executive were supportive of the Claimant at this point and that no question of suspension arose from their points of view. As Ms Pugh indicates, the Department was looking to put someone into Haringey to work alongside the Claimant whilst any inspection or investigation took place. The Claimant agrees that she was told by the Chief Executive that this is what would happen. The appointment of John Coughlan to be this person was announced by the Secretary of State in the announcement made at 5.23 pm that afternoon (see paragraph 142 below).

[135]As I have said, no documentary records that map fully the events between about 12.30 pm and about 5.30 pm are before the court. All that Ms Pugh says is that “in the course of the afternoon … there were discussions between Departmental officials and the Secretary of State” which resulted in his decision that there should be “an urgent Joint Area Review inspection and that Mr Coughlan should be seconded, with immediate effect, to work alongside the Claimant and support her during the inspection process.” In a letter from the Treasury Solicitor to the Claimant’s solicitors, who had requested information on when Mr Coughlan was first contacted that day, the answer was that a precise time could not be given, but it was “in the afternoon … after Prime Minister’s Questions.”

[136]To the extent that it matters, I do not think that there can be any doubt that matters moved forward very quickly during 12 November. There was a revealing answer in a letter dated 27 August 2009 from the Treasury Solicitor to the Claimant’s solicitors in response to a request for disclosure of “copies of all records of discussions between Departmental officials and the Secretary of State on the afternoon of 12th November 2008” (to which the response was that “No formal record exists”) and for information as to “what time such discussions took place and in particular whether these preceded or followed Prime Minister’s Question Time”. The answer to the second request was as follows:

“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).”

[137]Brokering the arrangements by which Mr Coughlan, who was DCS of Hampshire County Council, came to be seconded must have taken a little while and the same letter from the Treasury Solicitor indicates that he was contacted after midday. The comprehensive statement issued by the Secretary of State at 5.23 pm (see paragraph 142 below) will have required careful drafting and consideration, but presumably when a Secretary of State decides that things should move fast, they move fast. The only additional insight into how matters moved forward is to be derived from the evidence of the Ofsted witnesses. Mr Roger Shippam, then the Deputy Director of the Education Directorate at Ofsted, said that “in the course of the day [the Chief Inspector] received a telephone call from David Bell … [informing her] that she would shortly be receiving a letter from the Secretary of State asking Ofsted (together with the Healthcare Commission and HMIC) to carry out an urgent JAR of safeguarding and promoting the welfare of children in Haringey.” (HMIC stands for Her Majesty’s Chief Inspector of Constabulary.) If it is correct that the letter from the Secretary of State did follow “shortly” then, bearing in mind that it was sent shortly after 5.30 pm, it would suggest that this first contact was made earlier that afternoon and hence after Prime Minister’s Questions. Indeed in a formal response dated 8 September 2009 to a request for further information, the Treasury Solicitor on behalf of Ofsted has said that the telephone contact between Mr Bell and Ms Gilbert was “at some time estimated to be between 2.30 pm and 3.00 pm.” Mr Shippam’s witness statement does not actually confirm this was so and neither does the witness statement of Ms Brown give any real insight into when Ofsted were first approached. In answer to a question from the Claimant’s solicitors the Treasury Solicitor has confirmed that the letter to Ofsted was written “during the course of the afternoon after Prime Minister’s Questions”. Mr Maurici submitted in his Skeleton Argument dated 18 September (and served on 21 September) that the “evidence shows that Ofsted were not approached about doing an inspection even on a preliminary basis until the afternoon … after PMQT.” Neither Ms Pugh in her subsequent witness statement, nor Mr James Eadie QC in his submissions on behalf of the Secretary of State, has challenged that assertion and, in those circumstances, in the absence of evidence that might have shown the contrary, I am inclined to assume that this was indeed so. The reply to the request for information from Ofsted seems to support this conclusion.

[138]On the assumption that that conclusion is valid, it means that everything was put in place to enable the announcement made by the Secretary of State at 5.23 pm in the space of a few hours after Prime Minister’s Questions. This has led to the suggestion by Mr Maurici that “for (party) political reasons following the exchange in Parliament … and the growing media storm the Secretary of State determined to act in haste.”

[139]Ms Pugh, however, deals with the matter on the Secretary of State’s behalf as follows: “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.”

• 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

[140]This is presumably another way of describing the “iterative discussions” to which reference was made in the Treasury Solicitor’s letter to which I referred in paragraph 136 above.

[141]Whilst it is possible to understand why the Claimant (and indeed others) may believe that what took place that afternoon was in some way driven by the party politics of the moment, it would, in my view, be too simplistic an analysis. Ever since Peter’s death the DCSF had been concerned that, following the trial, the case might either be used as or simply have the effect of, as it was put in Ms Pugh’s witness statement (and reflected in the Claimant’s own understanding of the position), destabilising “the improvements that there had been nationally following the implementation of the 2004 Act and the Government’s ‘Every Child Matters’ reforms.” She has drawn attention to concerns expressed on behalf of the Government Office for London to that effect earlier in the summer of 2008 (see paragraph 98 above). It is clear from the media coverage to which I referred in paragraph 120 above that many questions were being raised. It is, of course, possible that neither the Ministers nor the Departmental officials had foreseen the strength of the public reaction to the case and were, accordingly, not initially as prepared for taking the urgent steps that they did that afternoon as they might, on reflection, have been. But if that is so, it was not necessarily just “party politics” that dictated the change of gear: the urgent need to restore some confidence in the position within Haringey and more widely was, as it seems to me, a judgment that the Secretary of State was entitled and indeed obliged by virtue of his office to make at the time, albeit one made within an apparently short timescale. That does not make it wrong or otherwise inappropriate. Indeed, of course, it is not a decision that is the subject of direct challenge in these proceedings although the oblique suggestion is that, because matters proceeded with such haste, corners were cut which resulted in ultimate unfairness to the Claimant. I have dealt with all this merely because of the suggestion that what happened was “politically motivated”. As I have said, that is too simplistic. The essential question in the present case relates to the decision made by the Secretary of State on 1 December to which, of course, I will be returning in due course.

[142]At all events, the decision was made and reflected in a further Ministerial statement issued at 5.23 pm. It was in these terms:

“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; andhealth 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.”

[143]Shortly after that announcement was made, the Secretary of State’s letter to Ofsted was sent electronically. It was in these terms: “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.”

• 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.

[144]It was this letter that constituted the formal “request” of the Secretary of State under section 20(1)(b) of the 2004 Act. It was this request with which Ofsted (and the other inspectorates) was obliged to comply. How Ofsted went about doing so and the history of the inspection is dealt with in Section 11 and paragraphs 410-490 below.

[145]All that occurred by about or shortly after 5.30 pm that evening.

[146]The Claimant went home to find, she has said, press outside her home and that she was the first item on the BBC News at 10 o’clock. She says that the reporter on the News said that she had refused to apologise, had refused to apologise to Baby P’s father and had given out graphs at the previous day’s press conference, all of which, she said, were untrue. She said she began to receive abusive text messages and e-mails, many of which were extremely distressing.

[147]During the later part of that day preliminary informal discussions were taking place within Ofsted about how to approach the inspection requested by the Secretary of State. (iii). 13 November 2008

[148]The Claimant says that there were about 8 press representatives outside her home in the morning and that she felt very intimidated by them and their presence. She said that when she arrived at the office “the press were camped outside … in large numbers.” She also says that hate mail began arriving at the office that morning.

[149]The material placed before me contains extracts from some of the press coverage of the situation on this morning. It remained hostile to Haringey and to a number of named individuals who were identified as being involved in Peter’s case, including the Claimant. It was that morning that the petition in The Sun, to which significance is attached on the Claimant’s behalf, first appeared. A number of articles appeared in The Sun demanding that those responsible, including the Claimant, should lose their jobs. The text of the petition that readers were invited to sign was as follows:

“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 Sharon Shoesmith, 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.”

[150]It should be noted, however, that The Sun was not the only newspaper calling for the Claimant’s resignation or dismissal. I will not set out the evidence to this effect in detail, but that general theme continued over the next few days in several newspapers and into the weekend when the Sunday newspapers appeared. (For the record, I would record that Sylvia Henry was not made the subject of any disciplinary action by Haringey.)

[151]On the morning of 13 November the Secretary of State was interviewed on the Today programme on BBC Radio 4. A question put by James Naughtie was in the following terms:

“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”.

[152]The Secretary of State was also asked about “public accountability” and whether “if there has been a failure with catastrophic results like this, there has got to be public accountability.” The Secretary of State indicated that he was not going to prejudge the work of the inspectors and concluded in this way:

“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.”

[153]Mr Coughlan arrived in Haringey during the day and consideration was given to a written description of his role. There appears to be an issue as to whether the Claimant was involved in this process, but there is no issue that no final version was agreed. Nothing, however, turns upon this.

[154]The Ofsted inspection team arrived during the afternoon. Because of the major significance of the inspection in these proceedings I am proposing to deal with the way in which the inspection was carried out in a separate section of this judgment (Section 11 and paragraphs 410-490 below). However, simply to complete the picture for this particular day, an initial set up meeting took place at Haringey during the course of the afternoon during which Ofsted representatives spoke with Haringey representatives, including the Claimant. (iv) 14-30 November 2008

[155]As will appear, the fieldwork aspect of the Ofsted inspection took place between Monday, 17 November, and Friday, 21 November, preliminary discussions about how this was to be undertaken taking place partly on 13 November and then again on 14 November. I will be saying more about the detail of that later. After the fieldwork part of the exercise was completed, conclusions were reached and the report drafted and considered during the period until Sunday, 30 November when a draft was sent to the Secretary of State. It was presented to the Secretary of State formally, as he had requested, on 1 December.

[156]I do not need to deal with this period on a day-to-day basis for present purposes although I will have to track what occurred in more detail when dealing with the Ofsted inspection (Section 11 and paragraphs 410-490 below). Subject to certain specific events to which I will refer, I can at this stage deal with matters more generally.

[157]In the first place, it should be noted that the Claimant, along with others at Haringey, were engaged, to a greater or a lesser extent, in cooperating with the Ofsted team in its inspection. Furthermore, the daily work in the Children and Young Persons Department at Haringey did not stop whilst the inspection was taking place. There are issues about what was said and not said to or by the Claimant as part of the inspection process (see paragraphs 410-490), but it is not in dispute that she attended the office throughout this period.

[158]It is equally plain from the material put before me that the media interest in what was happening in Haringey remained at a very high level. Many articles appeared during this period demanding, with varying degrees of force and in varying styles of language, that the Claimant (and others) should lose their jobs and should receive no compensation. The Claimant was variously described as “arrogant”, “smug”, “insensitive” and showing “abysmal indifference” to what had occurred. The petition launched by The Sun grew to over 1 million signatures during this period.

[159]As I have said (paragraph 48), it is no part of my remit to express a view on the rights and wrongs of the media coverage. However, there can be no doubt that the campaign to secure the Claimant’s dismissal was “high voltage” (to borrow Lord Steyn’s expression in the Venables case to which I will be referring later: see paragraph 400). In her witness statement the Claimant speaks of the press intrusion in her private life and in connection with her family, including her elderly mother. She was also, she says, the recipient of a large number of abusive and threatening messages, one of which was sent on several occasions spelling out 100 ways of committing suicide. She also received some death threats, including some targeted at her daughter. Contemporaneous evidence of her attitude to this within the first two days of it starting can be seen from an e-mail she sent to Ms Pugh on 13 November at 21.44 that evening. It was in these terms:

“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.”

This is not how to safeguard children.”

[160]Her account in this regard has not been challenged by anyone and indeed it is supported by other accounts. It is clear that consideration was given during this period by Haringey’s legal advisers to the question of whether an injunction might be obtained to protect her from the press attention. It is quite plain from Dr O’Donovan’s witness statement that she (Dr O’Donovan) was very concerned during this period for the Claimant’s safety, health and ability to cope. She was, Dr O’Donovan said, “the focus of an amazing amount of press and public attention.” Dr O’Donovan observed the stress and strain she was under and what she described as her “variable ability to concentrate during this very difficult period.” Ms Brown said that the inspection team was acutely conscious of the media pressures on the Claimant during the period of the inspection and that she appeared “both distracted and anxious during my dealings with her.” Mr Pullen, who saw her on two occasions during the fieldwork week, said she spoke about the pressure that she personally was under from the press and, in his view, “was clearly greatly affected by this.” Whilst Ms Ryan thought the Claimant “was holding up extraordinarily well under the pressure” the record kept (see paragraph 205 below) suggests that her “responses … to the team’s questions was less focused and coherent than … might have been expected”, an observation backed up by Ms Brown’s memorandum to which I refer in paragraph 487 below. Whilst the Claimant has said that she “is a very resilient person” and that she “was coping well with the pressure” – and, of course, I have had no opportunity to make an assessment of her in the witness box - it would be very surprising if, on this issue, the observations made by others did not contain more than a little substance even if some of the observations are arguably self-serving. The Claimant’s text message to Ms Brown (quoted in paragraph 280 below) demonstrates the strain she was under.

[161]Whether that assessment has a bearing on other issues in this case, and whether it invites the possible conclusion that the Claimant was significantly distracted from engaging fully in what was going on that week (and indeed subsequently), remains to be considered.

[162]The Secretary of State made a statement in the House of Commons on 17 November, but no point arises from that. By 26 November The Sun’s petition had reach 1.2 million signatures and it was delivered by representatives of the newspaper to 10 Downing Street on that day. A report of the delivery of the petition appeared in The Sun the following day (27 November), together with an article written by the Secretary of State at the conclusion of which was a photograph of the Secretary of State with, I understand, the representative of The Sun who delivered the petition, both of whom appeared to be looking at examples of the petition. The article was in these terms:

“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.”

[163]I will return to the issues raised about the petition and the Secretary of State’s article when considering the Claimant’s challenge to the Secretary of State’s decision made on 1 December (see paragraphs 399-408 below).

[164]I need now to deal with the circumstances of the inspection carried out by Ofsted and the report prepared for the Secretary of State.

[11]The Ofsted inspection and report

[165]The formal request from the Secretary of State was in the terms recorded in paragraph 143 above. It sought “an urgent Joint Area Review of safeguarding and promoting the welfare of children in Haringey …under Section 20(1)(b) of the Children Act 2004.”

[166]There is an issue about whether the Ofsted report was, properly speaking, a true Joint Area Review (JAR). A JAR, in very broad terms, is an inspection of children’s services within a local area. When promulgated, the report in this case was described as a JAR. However, an analysis of the normal procedures that would govern the production of a JAR would suggest that either it was not a full JAR or that it was not produced in accordance with the standard procedures and timetable. Whether the difference between a true JAR and something which fell short of one produced in accordance with the standard procedures makes any material difference to the outcome of this case is a matter to which I will return in paragraphs 412-413 below.

[167]It would, I think, be convenient to start by setting out how Ofsted interpreted the Secretary of State’s requirement and how those involved envisaged the inspection that they had been asked to conduct and the report they had been asked to provide. Its alleged status as a process that demanded “fairness” (by way of public law standards) is a separate, albeit related, matter to which I will refer later (see paragraphs 480-484).

[168]Mr Shippam (see paragraph 137 above) said that it was clear that those (including him and the Chief Inspector) who discussed the Secretary of State’s request initially were of the view that the Secretary of State was not asking for a “full” JAR of the kind carried out under what he called the “original JAR programme”. That programme took place between 2005 and 2008 during which period, on the Secretary of State’s request, a JAR was conducted for every Children’s Services Authority (CSA) in England. Mr Pullen described the JAR process in this way: ”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.”

[169]APA (in Mr Pullen’s paragraph 32) is an abbreviation for Annual Performance Assessment. He said elsewhere in his statement:

“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.”

[170]Mr Pullen says that the Published Arrangements, referred to in paragraph 37 of his statement, “did not anticipate the kind of urgent and narrowly focussed JAR that took place in this case.” Mr Maurici challenges the contention that the Published Arrangements did not apply. In essence, he submits that they apply to all JARs and not simply those which were “planned”. The importance of this contention from his point of view relates to the question of feedback during and towards the end of the inspection process. In the document referred to in paragraph 37 of Mr Pullen’s witness statement, under the heading ‘Conduct of Joint Area Reviews’, the following appears in relation to ‘Reporting back’:

“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.”

[171]Under the heading ‘Giving feedback’ later in the document the following paragraphs appear:

“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.”

[172]Mr Shippam says, and there can be no doubt that he is correct, that both “the narrow scope and urgency” of the Secretary of State’s request were unprecedented. Ms Brown, the Lead Inspector, said that the request for the report by 1 December “meant that we had 19 days in which to scope the inspection, carry out all fieldwork and documentary analysis and to draft and finalise our Report.” She said that “JARs conducted under the original programme took place over a period of approximately five months … [and that as far as she was aware] this was the first time that Ofsted had received a request of this kind.” The period of 19 days included weekends, it would seem. Ms Brown’s memorandum (see paragraph 487 below) gives a clear indication of the problems caused by the severely foreshortened process.

[173]Mr Shippam and Ms Brown might have added also that, as Mr Maurici correctly observes by reference to the Ofsted website, the process was also unusual because Ofsted does not ordinarily “report to government ministers but directly to Parliament”, a reference to Ofsted’s independence from governmental intervention. In this case the Secretary of State directed that the report should go to him - and not just that it should go to him, but that no-one else should see it before he did: see paragraphs 177-178 below.

[174]In response to the submissions made on behalf of the Secretary of State in relation to the late disclosure, Mr Maurici submitted that this, taken with Ofsted's willingness not to follow the Published Arrangements and the regular meetings between DCSF officials and Ofsted during the inspection, evidences political interference with the inspection process.

[175]In my judgment, there would have to be far more compelling evidence than that to justify the conclusion that the Ofsted inspection had been effectively subverted by or on behalf of the Secretary of State. This was an unusual process (no-one denies that) and the parameters for the inspection were different from those surrounding the preparation of a normal JAR. On that basis the normal rules of engagement would be unlikely to apply. However, as I shall observe later (see paragraph 543), unless there is evidence from which it could be concluded that the Ofsted report was 'made to order' at the behest of the Secretary of State or his officials to meet a particular political or administrative objective, and thus the outcome became a foregone conclusion irrespective of the true merits of the inspection, I am unable to see that there is any substance in Mr Maurici's argument. In order to be ready to deal with the implications of the report when it emerged finally, particularly in a context when there would be a media expectation of an announcement of the outcome soon after the report was presented to the Secretary of State, it is tolerably easy to see why there would have to be contacts between officials in the short period provided for this inspection. The desire on the part of the Secretary of State to see the report before anyone else did may have arisen from concerns that its contents would be 'leaked' before he had had an opportunity to consider it. Unless there was evidence of some much more sinister influence in the process, I am quite unable to see that the matters upon which Mr Maurici relies for this purpose sustain his argument. I will return to another feature of this general argument later.

[176]As I have indicated, some preliminary thoughts were given within Ofsted during 12 November as to how the process would operate in this unique situation. The witness statements of those involved at Ofsted show that there were further discussions on 13 November and again on 14 November, those latter discussions also involving the Healthcare Commission and HMIC. It was agreed early on that whilst the process would not be a “full” JAR, the framework and methodology employed in carrying out a JAR would be applied, albeit adapted to the restricted timetable. No intrinsic complaint is made about that and indeed the Claimant herself has acknowledged that it was a sensible approach.

[177]The question of feedback was discussed in these planning meetings. (In an early meeting - notes of which were prepared by Ms Ryan and which formed a significant part of the late disclosure by Ofsted - it was, it appears, resolved to change the word "feedback" in the minutes to the word "liaison".) The decision was made that there would be no interim feedback or reporting to Haringey during the process. Ms Brown articulated her understanding of this decision to be as follows: ”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.”

[178]The thinking behind this is explained in Mr Shippam’s first witness statement. He said there were three reasons:

“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.”

[179]I should say that Mr Shippam’s witness statement containing these paragraphs was dated 24 July and I assume it was served on the other Defendants not long thereafter. Ms Brown’s first witness statement was dated 16 July 2009. She said in that statement that she “had been told that we were to report directly to the Secretary of State, and that there was to be no interim feedback to the local authority”, her understanding being as indicated in paragraph 177 above. She exhibited her notes for the set-up meeting on 13 November (see paragraph 181 below) which indicated that “we will be unable to offer a feedback meeting at the end of inspection fieldwork [because our] brief is to feed back to the Minister.” These pieces of evidence certainly supported what, in due course in her witness statement of 21 September, the Claimant said she was told by Ofsted at the outset of the inspection, namely, that there was to be “strictly no feedback during the course of the inspection either to me or to any of the other agencies.” Indeed that was clearly recorded in the evidence that she gave to the Haringey Appeal Hearing in January 2009 (see paragraph 349 et seq below), the transcript of which was attached to the witness statement of Councillor Dodds on behalf of Haringey dated 2 June 2009. In her second witness statement, dated 2 October, some five days before the commencement of the hearing, Ms Pugh responded to this assertion of, as she put it, “the Claimant”, in this way:

“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.”

[180]Leaving aside for present purposes the comment that this position of the Secretary of State took a rather long time to emerge given the much earlier stage than the Claimant’s second witness statement that Ofsted’s view was revealed and indeed from sources other than the Claimant, it is plainly of concern that the Secretary of State and those advising him may apparently have thought that there would be feedback during the inspection process whereas those conducting it thought that he had precluded it. I did not find Mr Eadie’s attempt to suggest that there “was in fact no misunderstanding” particularly convincing. I will have to consider, in due course, whether in truth this advances the Claimant’s case as to unfairness, but it does illustrate the consequences that can flow from engaging at short notice in a vastly accelerated form of an otherwise well-established process. I am far from suggesting that the decision to proceed in this accelerated way was wrong or reflected a misjudgement, but it does illustrate starkly the need for clarity of thinking when such a decision is made and for very clear lines of communication between those engaged on important practical issues.

[181]I should, perhaps, record that during 16 November there was a further e-mail from Mr Lauener (see paragraph 89 above) to his colleagues within the DCSF referring to a conversation he had had with Mr Shippam that day in which he, Mr Lauener, had said that “what was paramount was for [Haringey] not to see [the report] before [the Secretary of State] does, but [Haringey] would need to be able to comment on accuracy.” Whether that comment was taken by Ofsted as further evidence that there was to be no feedback is unclear but, at all events, it is common ground between the Claimant and Ofsted (and indeed Haringey) that there would be no feedback in the normally understood sense of the expression in JARs. This was said by Ms Brown at the first set-up meeting at Haringey on the afternoon of 13 November and indeed the Claimant’s own notes of that meeting reflected it.

[182]It was also made clear at that meeting that the evaluation of the SCR in Peter’s case was a separate matter from the inspection itself. There is, however, an issue about whether, as Ms Brown suggests in her witness statement, she told the meeting that the evaluation would be taken into account by Ofsted as part of its consideration of the evidence as a whole or whether, as the Claimant says, this was not mentioned at that meeting. It is common ground that Ms Brown was reading from a script prepared in advance and it is equally clear that that script says nothing about the SCR evaluation being taken into account in the way suggested. The Claimant’s own notes do not contain any reference to this either. If I had to choose between these two recollections on the basis of the documentary material, I would, on the basis of the contemporaneous documentation, choose the Claimant’s. It is, however, clear from a document detailing the scope of the inspection prepared for the second set-up meeting held at Haringey on the afternoon of 14 November that it was stated that, whilst the SCR review was separate, issues that arose from it would, it was said, “inform the inspection and be part of the evidence considered by the team.” The Claimant’s brief notes do not reflect this, but she will have had a good deal on her mind in considering how to meet Ofsted’s requirements for the provision of information to and the arrangements for the inspection the following week and may simply not have taken it on board. Indeed it was not just that: during the course of the meeting (according to one of Ms Brown's internal e-mails within Ofsted dated 15 November, disclosed in the later disclosure) the Claimant's daughter telephoned during the meeting to say that she was unable to leave her flat because of the press outside which, according to Ms Brown "further distracted and distressed" her. That is hardly surprising. However, I do not think that whatever may or may not have been said specifically at the meeting on 13 November really makes any difference: it must have been plain as the inspection proceeded that the evaluation of the SCR would (or could) have a bearing on the report submitted to the Secretary of State and indeed the Claimant herself discussed the SCR in some detail with the inspectors.

[183]It is, however, clear from the notes of the meetings held at this time that the perception of Ofsted was that “this was not an investigation into the case of Baby ‘P’”. Indeed over the weekend of 15-16 November Mr Shippam’s e-mail at 15.39 on the Sunday to Mr Lauener was in these terms:

“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.”

[184]As I will indicate later (paragraph 235), there was a change in emphasis in relation to this in the succeeding days.

[185]At the second set-up meeting, in the afternoon of Friday, 14 November, Ms Brown (accompanied by Ms Mary Ryan, whose background was in education, the Deputy Lead Inspector who was the Lead Inspector for the 2006 JAR conducted at Haringey) indicated what the inspection team would want to see and do the following week. The meeting was attended by the Claimant, Cecilia Hitchin, Mr Coughlan and Sharon Kemp, one of the Assistant Chief Executives. The programme outlined was an inspection of the “duty room” by two inspectors, Mr Steve Hart (Mr Stephen Bastow-Hart) and Ms Pat O’Brien, on the Monday (17 November), case file reading on the Tuesday and interviews and focus groups from the Wednesday to the Friday.

[186]The duty room is the first port-of-call for potential incoming work for Haringey’s social care services. Mr Hart described it in his witness statement in this way:

“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.”

[187]Apparently, concern was expressed by Cecilia Hitchin (who had not been present at the previous day’s set-up meeting) about a visit of the inspectors to the duty room on Monday morning as the duty team had not been warned of their visit. According to the Claimant, Cecilia Hitchin was concerned about the impact of an observation on members of staff who, in her view, were under “extraordinary pressure” at the time because of the press interest and who were finding their clients “were becoming more difficult as a result”. It is clear from an e-mail of Ms Brown on 15 November (disclosed in the subsequent disclosure) that Mr Coughlan was also "particularly opposed" to the suggestion that the inspectors would arrive in the duty room when it opened at 08.30 on the Monday morning, suggesting something a little more than having "expressed a concern over our proposal to visit the duty room", as she had put it in paragraph 91 of her first witness statement. At all events, whatever the background to the concerns expressed, by whom and with what strength, it was agreed that the inspectors should defer their arrival at the duty room until the duty team had been briefed by the managers.

[188]I do not think there is any need to go into detail, but it is plain, given the timescale and the nature of the investigation, that a great deal of organisation and preparation had to be undertaken over that weekend. The inspectors would have had to do a good deal of reading of background material and, as I shall mention below (see paragraphs 189-190), various preparations were undertaken at Haringey.

[189]The Claimant, along with a good number of other staff, went into Haringey over the weekend to prepare for the following week. I will deal with evidence given by others about that weekend shortly, but the Claimant’s account is that she was the victim of very intrusive media interest that weekend. The case was, as I have already indicated, the subject of continuing comment and at least three of the Sunday newspapers carried articles that were very critical of the Claimant (amongst others). Her brother returned from Ireland, where he had gone to reassure their mother, to help look after the Claimant whilst she was in public areas. It was that weekend that her former husband had been approached by the press.

[190]The Claimant said that the atmosphere in the office over the weekend was very tense. That general view is shared by Dr O’Donovan and Mr Young, both of whom were present in the office at times over the weekend. However, in their witness statements submitted shortly before the commencement of the hearing in October they suggested that there was a degree of panic about the preparations for the following week and each began to have concerns that the inspection would not yield a positive result. I will set out what they said. It is evidence upon which both Haringey and, once they had seen it, Ofsted and the Secretary of State rely.

[191]Dr O’Donovan, who said she was concerned for the Claimant’s safety over the weekend and spoke to her about it, continued in her witness statement of 1 October (again a statement served very shortly before the hearing) as follows:

“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.”

[192]Framework I is, I understand, an integrated electronic case management system designed for, or certainly capable of being used for, social care work records and planning. At its simplest, it is a computerised database.

[193]I should make it clear that the Claimant challenges a good measure of what Dr O’Donovan says about the events of that weekend. She suggests that the account in paragraph 14 is exaggerated and that no discussions of the sort referred to in paragraph 16 took place.

[194]Mr Young, in his witness statement of 1 October 2009 said this of that weekend:

“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.”

[195]Mr Maurici attacks that evidence as belated and derived from sources who, with no social work background, would not understand the true implications of what was going on. He also makes the point strongly (both about that weekend and other meetings to which I will refer later) that neither Dr O’Donovan nor Mr Young have any contemporaneous notes confirming their recollections. There is some force in that point, but certainly some of the matters to which they refer are matters of impression and one would not necessarily expect records to be made of that kind of matter. Mr Maurici recognises that Mr Young had said in his first witness statement of 22 June that he (Mr Young) was not surprised by the outcome of the inspection because of what he saw on the weekend of the 15 and 16 November. In that statement he said that “there were issues emerging”. He continued thus:

“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.”

[196]Taken in isolation this evidence would not necessarily have been particularly compelling. It is not difficult to imagine that any inspection of the sort carried out by Ofsted would occasion a degree of nervous anticipation on the part of those whose work is to be inspected. However, the circumstances of this “unique” and uniquely urgent inspection, taken against the background of the press presence near the office and the headlines that had emerged in the previous few days, must have made that weekend an especially difficult and intimidating time for everyone involved. Since it had made such an impression on Dr O’Donovan and Mr Young I am surprised that it was not articulated more fully at an earlier stage and that Mr Young, when presenting the Council’s case to the Appeal Hearing in January, did not remind the Claimant about it.

[197]However, be that as it may, there is little dispute that as the fieldwork week progressed, Dr O’Donovan, Mr Young and some of the senior Councillors were anticipating a poor outcome. Mr Young said in his witness statement of 22 June that it was clear “by the end of the last week in November that the report … would not be positive.” However, in the witness statement of 1 October he said that by Tuesday, 18 November, he (along with Dr O’Donovan) had already formed that view. It is not in dispute that Dr O’Donovan and Mr Young had a meeting with the Claimant that day in which, according to the Claimant, Dr O’Donovan “repeatedly told [her] that the report would be negative” and that she mentioned the name of Richard Penn as someone from the Association of Local Authority Chief Executives who could represent her in any negotiations and said that the Haringey would pay for this. The Claimant did indeed contact Mr Penn that evening. It follows that by whatever process it came about, by then at least Dr O’Donovan had come to appreciate that the report would not be good. I will return to that perception when I have reviewed the events of Monday, 17 November, and the earlier part of the Tuesday. It does have to be said that if that perception on the part of Dr O’Donovan and Mr Young was already in place by the end of the Tuesday, it must have been something very rapidly confirmed from their impressions formed over the weekend given that the inspectors did not arrive to commence the inspection until the Monday morning. I should say that Dr O’Donovan has said that the view was also shared by Councillors Meehan and Santry. She has denied receiving any private feedback from Ofsted or having any liaison with the DCSF at this time. She says that her assessment was based on her own observations and discussions with Haringey staff and Council members, together with the nature of the concerns being raised with them by the Ofsted inspectors and her own direct dealings with the Ofsted inspectors.

[198]The Claimant says, and I doubt anyone would seriously dispute it, that those who had worked in the office over the weekend were exhausted by the Monday morning. Ms Hitchen had been considerably stressed over the weekend and Mr Preece, the Service Manager with responsibility for Children in Need and Safeguarding (including the responsibility for the management of the duty room), reported sick that morning. The Claimant says that he had been tracked down by one of the newspapers. This meant that the Service Manager with responsibility for the place where the inspection was to start was not in post that morning. The Monday, incidentally, was the day of the Panorama programme that had been in the course of preparation for some while. There is no doubt that it was an additional source of anxiety for the Claimant and others at Haringey. In the late disclosure of material by Ofsted there is a lengthy e-mail from Ms Brown to Mr Pullen (copied to Ms Ryan) on 15 November which reported on her meeting at Haringey the previous day. She said there was an aura of Haringey being ‘under siege’ and drew attention to the fact that everyone there was “very [focused] on the fact that Panorama will be airing on Monday night.” She concluded the e-mail in this way:

“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.”

[199]I will say something about the duty room inspection and feedback shortly because they have both figured significantly in the submissions made to me, but it is important to understand how the Ofsted team recorded its findings or comments as the inspection progressed before turning to those matters.

[200]The process is founded on the concept of a record of evidence (RoE). The meaning of this expression was explained by Ms Brown in her first witness statement as follows:

“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.”

[201]Because of the speed with which the inspection had to be carried out, there is no doubt that the preparation of the RoE was more haphazard than usual: see paragraph 487 (at internal paragraph 9).

[202]The “Key Judgements under consideration” were those that had been identified by Ofsted as those appropriate for consideration in the light of the Secretary of State’s request. They had been enumerated and provided to Haringey at the second set-up meeting in the following terms: 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

Service management

[203]As will appear in due course (see paragraph 487), because of the time constraints, some of these areas were dropped as targets in the inspection and the ‘service management’ issue presented considerable difficulties because Ofsted did not receive the usual briefing about these matters from various independent parties that would have helped to inform the inspection.

[204]The evidence gathered during the inspection was assessed against the relevant Key Judgments using a four point scale: Grade 1 – inadequate; Grade 2 – adequate; Grade 3 – good; Grade 4 – outstanding. Each entry on the RoE records the Key Judgment against which the item under review is being assessed and the “Key Judgment sub-theme’ is also identified. For example, if the Key Judgment is ‘Service Management’ and the sub-theme is ‘capacity’, this would be identified by a 6 in one column and a 3 in the adjoining column. The graded assessment appears in another column, with a more detailed “judgment comment” in the final column.

[205]As Ms Brown makes clear, the collated RoE embraces the items recorded by all three agencies inspected, namely, Haringey, the Health Services and the Police. It is not, as she says, necessarily comprehensive and Ms Ryan has acknowledged that “a small number of RoEs that [she] prepared were not included in the overall RoE, although this material was considered as part of the deliberations that gave rise to the Report”, one of which reflected on the Claimant’s role and her “capacity” under the “Service management” Key Judgment during the fieldwork week. She was assessed in this respect as “adequate”, the entry in the RoE being as follows:

“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.”

[206]Whilst that comment was made about the Claimant in particular, the more recent disclosure of Ofsted reveals other difficulties with the RoE and triangulation of evidence: see, e.g., paragraph 487.

[207]The concept of the “triangulation of evidence” referred to by Ms Ryan was explained by Ms Brown in her first witness statement. She described it as follows:

“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.”

[208]Although I will have to mention some aspects of the inspection in my review of the sequence of events, it is important to emphasise again the nature of that review. I am not called upon, and would be in no position, to assess the validity or otherwise of the comments reflected in the RoE or in any other source of evidence. Nor is it my task to assess whether the overall conclusion reached by Ofsted was correct or truly supported by the RoE or the other sources of evidence. There is a broad issue, to which I will refer later, concerning the nature of the JAR process and whether it demands “fairness” to any individual in the way that, for example, an inquiry into a disciplinary matter demands. However, irrespective of the answer to that issue, Ofsted has sought to demonstrate in the proceedings before me that if “fairness” was required to be shown, it was in fact shown sufficiently in the engagement of the Claimant by those involved in the inspection on issues and concerns that arose, particularly those that affected her position as DCS. Furthermore, Ofsted suggests that she accepted some of the crucial concerns in any event.

[209]It is against the background of those issues that I need to review aspects of what occurred during the inspection process. It follows that the focus of this exercise is upon the extent to which it can be said that the Claimant had the opportunity to answer or address matters upon which, in due course, reliance would be placed to remove her from her post.

[210]I should, however, preface this review with a brief reference to what Ms Brown says would be the nature of any engagement that the Ofsted inspectors would have with the Claimant, or indeed anyone else, during the inspection process. In relation to the way in which individuals are encouraged to record their views, the process is this:

“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 ….”

[211]Ms Ryan makes the point that if Ofsted was required to discuss every item of evidence obtained during a JAR with the DCS, the inspection would be unworkable, a proposition with which, I apprehend, there is no dispute on the Claimant’s part. This would have been even more obvious in this particular inspection.

[212]I record all that to indicate the general approach as Ofsted saw it. It foreshadows to some extent the submissions that Mr Tim Ward makes concerning the nature of the investigations carried out by Ofsted to which I will refer later (see paragraphs 480-484).

[213]Ms Brown suggests in her witness statement that individual cases were discussed with the Claimant and her Deputy and goes on to assert that she had “no doubt … that our central concerns relating to her area of responsibility were discussed with her, albeit at an appropriately high level.” Since that is in issue I will return to it in due course. She also asserts that the Claimant was not a layperson for the purposes of the inspection since she “had herself previously been an HMI at Ofsted”. That is, of course, a fair point though it is also fair to point out that the Claimant had not been an HMI recently (at least since 2001) and, in any event, her experience would have been in the inspection of educational establishments, not of CSAs. Nonetheless, as DCS she would (or should) have been familiar with the Ofsted guidance on inspections leading to a JAR and was, of course, DCS during the period of the JAR in Haringey in 2006 (see paragraph 81 above). However, on any view, the process taking place during the week beginning 17 November 2008 was no ordinary JAR.

[214]The Monday began with the observations of the inspectors on the duty room in the circumstances outlined above (see paragraph 198). I need not dwell on the precise detail of what the Ofsted inspectors recorded as their observations. What is important, on this aspect of the case advanced by Ofsted, is what was discussed with the Claimant about matters concerning her role and within the Department of which she was Head. To that extent, the focus is upon what has been termed “the duty room” and “case-tracking” feedback meetings that took place on the Tuesday and Wednesday respectively. Mr Ward has submitted that “leadership and management issues were a constant theme” in those meetings. I will return to consider whether that submission is justified later.

[215]Given that “feedback” generally was not contemplated within the inspection process (see paragraph 177 et seq above), the question may be asked as to the purpose of these two “feedback” meetings. As to the duty room feedback meeting, Mr Hart explains the background in this way:

“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.”

[216]I think I should record, lest this extract from Mr Hart’s evidence is misunderstood, that his witness statement makes it clear that the inspectors “did not consider that [they] had identified any cases of children in immediate danger, such that would justify urgent action to obtain immediate protection.” Ms Brown also confirmed this in her evidence. What lay behind this was the 7 or 8 cases to which he referred in the paragraph of his witness statement quoted at paragraph 224 below.

[217]So far as the “case-tracking” feedback meeting was concerned, Ms Brown says that during the course of Tuesday the inspectors read the files of the 15 cases that had been selected for case-tracking and the concerns that arose from this exercise were, she said, “extremely serious” and “fundamental to the way that safeguarding systems were operating in Haringey” and in some respects “similar to those that had arisen in the duty-room observation.” The purpose of the meeting was “to ascertain whether [those attending] agreed with my view of the quality of the files and the practice of professionals described therein and were aware of the nature and extent of the deficiencies and, if so, what action was being taken to rectify them.”

[218]That reflects the background, from Ofsted’s perspective, of the two meetings: serious concerns had arisen and it was felt appropriate to raise them with the management for the reasons given. It is not disputed that the RoE contains entries relating to the concerns that had arisen. Mr Maurici has, however, drawn attention to what he submits is a gaping hole in the contemporaneous documentary material relating to the duty room feedback meeting which, he says, lies at the heart of Ofsted’s case that the gist of the concerns the inspectors had were raised with the Claimant. As I have already indicated, there was undoubtedly considerable emphasis based on this particular feedback meeting for the purpose for which I have indicated. Mr Ward helpfully produced a document entitled “The Inspection's central concerns” which set out the ten bullet points under the heading “Main Findings” in the JAR (see paragraph 288 below) and sought to demonstrate how each had been raised with the Claimant. Mr Maurici has highlighted the fact that all but two (and, indeed arguably, all but one) placed substantial (though not complete) reliance on what was said at this meeting. He is, I think, justified in saying that the meeting is of some real importance to Ofsted on this aspect of Ofsted’s case.

[219]As a matter of fact it is correct that in the RoE (which comprises 797 individual entries) there is no reference at all to this meeting. Given that there are some entries relating to the “case-tracking” feedback meeting, and given the “serious concerns” it is said underpinned the need for this meeting, it is surprising that there is no contemporaneous record of what took place. Mr Hart spoke of this meeting in some detail in his witness statement of 24 July, but his account must have been based purely on recollection, given the lack of contemporaneous documentation to which to refer. Since the contemporaneous documentation is usually more compelling than a recollection put together some while after the event (no matter how honestly it may have been constructed) this is a legitimate area for Mr Maurici to launch an attack. Given that Mr Hart’s statement was produced in response to the Claimant’s judicial review application and that she was DCS at the material time (and, frankly, very high profile at the time), it is surprising that he had forgotten that she was at this meeting. His first witness statement merely referred to Cecilia Hitchen “and a number of service managers”. Given that the Claimant subsequently produced her contemporaneous notes of the meeting, Mr Hart has accepted that she was there.

[220]Whilst mis-recollections can, of course, occur, particularly when there is a lack of contemporaneous documentation to which to refer, this was a surprising error. Inevitably, it has made me look with caution at what Mr Hart has said about this meeting. As I have said before, and I repeat, it is no part of my task to assess the credibility of any witness and Mr Hart has not had an opportunity to rebut suggestions of inaccuracy about his evidence in relation to the feedback meeting. Given that all the material observations of the duty room were made by Ms O’Brien and she was also present at the feedback meeting, it is, perhaps, unfortunate that she is currently on a career-break and no evidence has been supplied directly by her. (In the late disclosure by Ofsted she is seen to raise concerns about some matters intended to be put in the report. Indeed, to be fair to Mr Hart, so did he.) The principal issue between the Claimant and Mr Hart is the extent to which the “serious concerns” were raised in that way at the meeting. Her note, whilst reflecting a “level of concern” about “process”, does not reflect a suggestion that the concerns were serious.

[221]Since the hearing in October and as part of the later disclosure by Ofsted, an e-mail from Mr Hart to Ms Brown dated 16 December 2008 has been revealed referring, it is said, to three particular cases that were referred to at the duty room feedback meeting. Mr Maurici resists the admission of this late evidence and suggests that it is an opportunistic attempt to close a gap in Ofsted’s evidence. I agree that it could and should have been produced earlier (and, along with other matters, I shall be looking closely at costs issues that arise from matters such as this), but I cannot see any basis for not receiving it in evidence. Where further and fuller disclosure is given, there can be documents that are both adverse to and supportive of the discloser's case. To be even-handed I should admit this e-mail.

[222]It is not exactly contemporaneous, as Mr Maurici says, and it is not wholly consistent with the evidence in his principal witness statement, but it does support the general tenor of what Mr Hart said about this feedback meeting. Mr Maurici says the reason for this e-mail being sent by Mr Hart to Ms Brown on 16 December 2008 is wholly unexplained. That is not quite correct because, in his third witness statement, Mr Hart says that it was sent in connection with a meeting between Ms Brown and Mr Coughlan that day. The e-mail to which it was a response does not seem to have been disclosed, but I must assume there is other material that confirms what he says.

[223]Whilst, for the reasons I have already given, I am not wholly satisfied about the evidence upon which Ofsted is relying for this purpose, the RoE does record 15 judgments of “inadequate” out of 23 entries relating to the duty room inspection. Equally, and for the record, it should be noted that it does record 3 particular features that were “good”, one concerning the administrative process of dealing with new referrals and another relating to staff training. Ms Brown makes it clear that judgments made by Ofsted are not made on the basis of a simple arithmetical exercise, but the inference I would draw from a perusal of the RoE entries for the duty room is that they represented a set of observations that raised concerns at a level sufficient for there to be a “feedback” meeting when, during the course of this particular inspection, no feedback was generally intended. Whether the full seriousness, as it is now contended by Ofsted to have been (“unique in my experience” was how Ms Brown put it in her witness statement), was properly and effectively conveyed to the Claimant (or whether in fact she was so distracted by all the media interest in her that she did not take it fully on board) is an open question, but I do not think it possible to accept that the Claimant and her Deputy would not have seen the meeting as flagging up issues that the inspectors had identified, were interested in and sufficiently concerned about to justify a specific meeting. I will address later the question of whether this was sufficient to pass the threshold of “fairness” to the Claimant on the assumption that such a threshold needs to be passed.

[224]Mr Hart says that he and Ms O’Brien emphasised that they would give them an opportunity to respond since it was possible that there were other records that they needed to check. He said that “there was a fairly muted response to our presentation” and Cecilia Hitchen said that they would go away and have a look at the files so that they could come to a view themselves and feedback to us in due course. Mr Hart says that there was no further response. Equally, it has to be said that there is no evidence of Mr Hart (or Ms O’Brien) following this up even though, as will appear in paragraph 238 below, Mr Hart interviewed Cecilia Hitchen the following day. Mr Hart has said that they raised “seven or eight specific cases … in which we had specifically serious concerns about the quality of the work undertaken with each child [and that they] raised issues such as the timeliness of response to referrals, the nature of that response, and the quality of assessment and decision making, recording and supervision.” Mr Maurici submits that this does not sit well with a failure to follow up these concerns or with an e-mail from Ms Brown to the Claimant’s assistant the following week (on 26 November) when, subject to one matter, she said that “there is nothing more we are requesting.” I will return to this more generally later.

[225]So far as the “case-tracking” feedback meeting on the Wednesday (19 November) is concerned (which was the day after the meeting between the Claimant and Dr O’Donovan and Mr Young), there has never been any dispute that the Claimant was present – as indeed was her Deputy and two service managers. There are 8 RoE entries relating to the 16 files audited by the inspectors, some of which appear to overlap to some extent. The Claimant’s notes of the meeting (which indicated that it took place at about 3 pm) reflect aspects of the entries in the RoE. According to the RoE, an issue raised was the variable quality of the assessments made on child protection and looked after children (LAC) files, with lack of rigorous analysis or, in some cases, a complete lack of analysis. This is reflected in the Claimant’s own notes. The Claimant’s notes do, however, indicate a number of positive comments made. For example, positive comments were made, according to her note, about the recruitment and training programme for staff, a matter which does appear to be reflected in the RoE although the quality assessment was only put forward as “adequate”. According to the Claimant’s notes, Ms Brown told the meeting that Haringey “was further down the line than most” in implementing a new IT programme (which I understand to have been the Integrated Children System). The only comparable reference in the RoE to IT is when the Claimant and her Deputy are recorded as saying that the need to use electronic files and the consequent “filling in of boxes” militates against the process of analysis. This was attributed to the “capacity” aspect of the “Service Management” Key Judgment (see paragraph 202 above) and given an assessment of “inadequate”.

[226]One matter reflected in the Claimant’s notes, not mentioned anywhere in the RoE and not contradicted in Ms Brown’s second witness statement, is the comment said to have been made by Ms Brown that, because of the limited nature of the JAR, it would not be possible to interview lead social workers. Ms Brown says that this was not a weakness of the inspection as the Claimant suggested in her witness statement (and as the recorded comment might suggest). She put it this way in her second witness statement:

“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.”

[227]The Claimant has said that this meeting left her feeling that some of the issues identified at Haringey were issues that were more widely experienced across the country. She said this in her principal witness statement:

“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.”

[228]Ms Brown responds to that in this way:

“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.”

[229]I am, of course, unable to resolve the question, to the extent that it arises, of whether what occurred in Haringey was unique or indeed whether Ms Brown was justified in saying that the scale of the failings found during the case-tracking exercise was unique in her experience. Mr Maurici’s principal point here is that at the 1 December 2008 meeting with the Secretary of State (see paragraph 294 below) he was left with the impression that matters at Haringey were uniquely bad when that was a proposition that had never been raised with her – or with others at Haringey. It is not disputed that such a view was never discussed with anyone at Haringey before it was put to the Secretary of State. The issue is whether that was unfair to the Claimant. I will return to this in due course.

[230]What I can do here, however, is to conclude, on the basis of the material available, that deficiencies in the case-tracking system, as they were perceived to have been by the inspectors, were discussed with the Claimant, her Deputy and others, and that the opportunity existed to dispel or address the concerns over those deficiencies.

[231]I will interrupt this narrative about the conduct of the Ofsted inspection with a brief reference to what was happening at the DCSF. As indicated previously, the Secretary of State made a statement in Parliament that day and responded to a number of questions. During the course of the interchanges he said this:

“… 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.”

[232]On the same day the Secretary of State wrote formally to Lord Laming setting out the terms of reference for his progress report.

[233]The Claimant’s notes record, and Ms Brown does not dispute, that Ms Brown asked to see the files for the four siblings of Peter on this day which was, of course, the first day of the inspection.

[234]On Tuesday, 18 November, the Secretary of State met Ms Lynne Featherstone MP, the MP for Hornsey and Wood Green, to discuss the issues arising. According to an e-mail disclosed in Ofsted's late disclosure, Ms Featherstone's office had been in touch with Ofsted during the morning in an endeavour to arrange a meeting between her and the inspection team leader. Also during that day, at about the same time as the duty room feedback meeting was taking place at Haringey, what was entitled as a DCSF/Ofsted “stock-take meeting” took place. The agenda indicates that amongst the matters proposed to be discussed were the Secretary of State’s “expectations” on “coverage” (which I take to mean the scope of the inspection) and on “publishing” the JAR. The question of whether there would be a separate “final” report was also on the agenda. The meeting was attended by senior officials within the DCSF (including Mr Lauener) and a team from Ofsted including Mr Shippam and Mr Pullen.

[235]It appears that the DCSF had by then decided that it wanted Ofsted to include reference to “the Baby P case” in the review and “to include mention in [the] report.” Apparently, the Ofsted representatives had suggested that they might need a further letter from the Secretary of State to ensure this. By the following morning the DCSF had confirmed a strong feeling “that the report should make specific comment on the Baby P case … although we recognise that it is not your usual practice to comment on specific cases.” The e-mail continued that “it seems justified here, given the circumstances of this case.” The final observation was in these terms:

“And we do not think that a further letter is needed.”

That e-mail was followed later in the day by a conversation between David Bell and a representative of Ofsted and then a further conversation between Mr Bell and Ms Gilbert. Mr Bell referred to this conversation in an e-mail to Ms Pugh later in the evening of 19 November in the following terms:

“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.”

[236]Whilst it may have been “pure speculation”, that was Mr Bell’s “distinct sense” obtained from his conversation with Ms Gilbert. That would reflect what would doubtless have been passed back by the inspectors over the course of the previous two days during which time the duty room observations had taken place and the case-tracking inspection completed. In an interview with The Guardian on 6 December Ms Gilbert was reported as saying to say that “[by] the second day the inspectors were saying the things they were finding were really inadequate … there seemed to be a catalogue of concerns” which confirms this conclusion. She repeated this in her evidence before the House of Commons Committee on 10 December. It has to be said that it reflects also the sense that Dr O’Donovan and Mr Young had obtained from their presence “on the ground” at Haringey (see paragraphs 190-197 above).

[237]The Claimant’s evidence is that at some stage during Wednesday, 19 November, Dr O’Donovan and Councillors Meehan and Santry had met Beverley Hughes and she has a note of what Councillor Santry told her on their return. It was to the effect that the DCSF was “looking for closure” with the possibility of the taking over of the service by a new team or the service of an improvement notice. Neither Ms Pugh nor Dr O’Donovan make reference to this meeting in their witness statements and I have no witness statements from Councillors Meehan and Santry. However, the suggestion of a team being sent in to “take over” the Department is something that was reflected in press reports of the previous day or so and thus adds credence to the Claimant’s recollection.

[238]At all events, the preponderance of the evidence does suggest that “the writing was on the wall” so far as the results of the inspection were concerned by the Tuesday, or the Wednesday at the latest. On the Wednesday the “case-tracking” feedback meeting had taken place. Mr Hart also interviewed Ms Hitchen that day in her role as Deputy DCS. I do not have any evidence from Ms Hitchen with which to compare that from Mr Hart. The note he made at the time in relation to the Key Judgment concerning “capacity” in “Service management” said this:

“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.”

[239]Mr Hart gave this an assessment of “inadequate”. He did so in relation to three other entries. As I have said before, it is not for me to form a view about the validity or intrinsic fairness of the assessments the inspectors made: the entry does, however, indicate that the concerns of the inspectors were being ventilated at management level, in this case, with Ms Hitchen.

[240]I should record that the Claimant herself says that Ms Hitchen was under severe pressure and was very stressed following her interview with Mr Hart. The Claimant said that she had never seen her in such a state before as she had always been very calm. Dr O’Donovan had made some arrangements for Libby Blake, the Director of Family Services for the London Borough of Kensington and Chelsea, to come and help, particularly in relation to the role of the Deputy DCS. Ms Hitchen apparently appeared on the morning of Friday, 21 November, not having slept and quite exhausted. She was sent home and never returned thereafter.

[241]This is, perhaps, further evidence of the stress that everyone at Haringey was under during that week. There was no let up so far as press coverage was concerned. The Sun, for example, indicated by how many names the size of its petition had grown. The Friday edition (i.e. for 21 November) claimed 700,000 signatures.

[242]That is, however, something of a collateral issue for present purposes. Whilst there was nothing “normal” about this JAR (described after the events as “extraordinary” by Ms Brown), within the parameters of what could be achieved, issues of concern were raised with those in responsible positions. The capacity of each individual to respond appropriately and effectively to those concerns would doubtless have depended on the character of the individual concerned. Ms Hitchen was very stressed by this whole episode, but was at least not named and identified in the press at that time.

[243]As I have said, her last full day at Haringey was 20 November. On that day she had been interviewed by Ms Brown, along with others, as part of reviewing the role and work of the LSCB. The Claimant was also interviewed by Ms Brown and Ms Ryan about her role as Chair of the LSCB and as DCS. These interviews would have appeared to have reflected the Secretary of State’s expectation, expressed in a letter to Ms Featherstone MP dated that day, when he said that he understood that Ofsted would interview persons named in ss. 18 and 19 of the Children’s Act 2004 (the DCS and the Lead Member for children’s services) “and consider how effectively they are discharging their responsibilities”. (I have referred to the Statutory Guidance in relation to the responsibilities of the Lead Member and DCS in Section 7).

[244]Before returning to those interviews, which took place the following day, I should record that on the same day as the Secretary of State’s letter to Ms Featherstone (ie. 20 November) there was a meeting between Ofsted representatives (Mr Pullen, Mr Shippam and Ms Rosen) and representatives of the DCSF. Ms Miriam Rosen is Director of Education at Ofsted and effectively Ms Gilbert's Deputy. Although no Minute or other documentation associated with the meeting emanating from the DCSF is before me (Ms Pugh was apparently not present) notes taken by Mr Pullen indicate a number of things. First, there is a note to the effect that the Secretary of State wanted “closure on the public debate”, an approach reflecting that apparently taken by Ms Hughes at the meeting with representatives of Haringey on 18 November (see paragraph 237 above). Second, it appeared that David Bell had requested in a telephone conversation with Ms Rosen that the report should be “clear in its judgments and attribution of responsibility” and that he wanted “definitive evidence on which the Minister can act”. Third, it appeared to be agreed that Ofsted would make no reference to the names of the 38 LSCB areas whose SCRs had been assessed as “inadequate”. Fourth, it appears that the preference of Ofsted was that Haringey should receive the report at the same time as the Secretary of State.

[245]Mr Pullen also went to Haringey that day and spoke to the Claimant. Although there are issues between them about other aspects of what occurred, I do not understand the Claimant to disagree with the following two paragraphs in his first witness statement:

“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.”

[246]Returning to the interviews mentioned in the letter at paragraph 243 above, it is not disputed that the interviews with the Claimant took place. There is a dispute about what was said and Mr Maurici has made a forceful submission that it is not possible to tell from the RoE entries how the issues were raised. Without that, he submits, it is not possible to know whether the “concerns” that were eventually reflected in the report had been sufficiently ventilated with the Claimant to make the process “fair”. I will be returning later to consider the evidence on the issue of whether the gist of the concerns were communicated during the interviews on the continued assumption, for this purpose, that such an obligation rested upon Ofsted. One conclusion I can foreshadow now is the obvious proposition that the Claimant must have known that her actions as Chair of the LSCB and as DCS would be under intense scrutiny, and it would, accordingly, be necessary for her to make sure that she made her viewpoint clear to the inspectors. The Ministerial Statement to which I referred in paragraph 142 above makes clear that the review would include “rigorous scrutiny of … the effectiveness of management practice and performance management systems in all relevant agencies.” That the intense pressure, including the media pressure, that she was under may have diminished her capacity to do so effectively is a matter that may fall to be considered in other contexts.

[247]As I have said, I will return to further aspects of this in due course, but to complete the picture of the fieldwork exercise I should refer to the interviews conducted by the inspectors of the Lead Member (Councillor Santry), the Leader of Council (Councillor Meehan) and the Chief Executive (Dr O’Donovan). All these interviews took place during the morning of 21 November, the last day that the Ofsted inspection team were on site.

[248]Ms Ryan interviewed Councillor Santry as Lead Member. The Claimant has drawn attention to the fact that she was interviewed along with four other members of the Council, some of whom were from opposition parties. She suggested that this was “unusual”. Ms Brown accepts that the Ofsted team would have preferred to interview the Lead Member separately from other elected members and acknowledges that the importance of the Lead Member’s role in relation to children and young people “would normally merit a one to one interview”. Ms Brown acknowledges that “in view of the limited time available” this course had to be adopted. She refers to it in the memorandum referred to in paragraph 487 below.

[249]I have no evidence from Councillor Santry, but the RoE entries of the interview do not read very positively (3 out of 7 being assessed “inadequate”) and it is impossible not to conclude that Councillor Santry found the meeting stressful. Ms Brown says that they spoke informally after the interviews. Her account is as follows:

“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.”

[250]I record all this, I should emphasise, in order to provide the picture from Ofsted’s perspective of what the inspection team had raised and with whom during the week.

[251]Ms Brown also spoke of the interviews with the Leader of the Council and the Chief Executive. Dr O’Donovan will have seen what Ms Brown said and has not taken issue with it. The Claimant will not have been in a position to make any direct comment because she would not have been present. Ms Brown said this: ”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.”

[252]Again, this demonstrates in a general way what was raised by the inspectors and with whom within Haringey during the fieldwork week. However, as a block of evidence, taken as a whole, the impression to be gained is that Ofsted had perceived and were going to report on significant weaknesses within the HCCS.

[253]Ms Brown says that on the team’s return to Alexandra House at around lunchtime a full inspection team meeting was held at which there was unanimous agreement that the overall judgment of safeguarding in Haringey should be “inadequate”. She has said that “the evidence we had seen was overwhelming.” Ms Ryan said this:

“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.”

[254]Ms Brown also has added her own view to that in this way: “ … 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 …”.

[255]As I have said before and must repeat, it is not for me to say whether that judgment, or the previously noted collective judgment, was or was not correct or whether each was truly justified by the evidence gathered by the inspectors. However, on the evidence before me there can be no other conclusion but that (subject to certain specific matters about which views differed) this was plainly the collective judgment of the inspectors. Leaving aside the issue of whether the process thus far was “fair” to the Claimant (on the assumption that an obligation of fairness to the Claimant was required on the part of Ofsted), I think it is an irresistible conclusion that the views of the inspection team would not have been altered by anything they saw or received subsequently even though some further documentation had been requested from Haringey. Ms Brown said that “the additional material we considered only served to triangulate the concerns that had arisen during the course of the fieldwork.” I am a little troubled by the comment she made that “many of our requests [for further information] were never answered … [most notably] in relation to the cases that we had raised following the duty-room observation” because, as I have observed previously, one might have expected a documented follow-up request if this was perceived to be so important. There is no evidence of any such follow-up request and the e-mail of 26 November (see paragraph 224 above) said that “there is nothing more we are requesting.” However, this is all probably a function of the speed with which the inspection was carried out and of the perception at that stage that it was interim in nature.

[256]Returning to the specific events of Friday, 21 November, Ms Pugh telephoned the Claimant and during the conversation asked her how the inspection was going. According to Ms Pugh, she said that the inspectors had just left and that they had gone about their work very professionally. Ms Pugh said she made no complaint about the JAR process. The Claimant does not dispute the terms of this conversation, but understandably points out that any comments she made about the inspection team or the process were made in the context of her understanding at the time, namely, that the inspection was an interim review only. That, as I have indicated, was also Ms Brown’s perception at the time she left Haringey’s offices that day even though by then she had formed the view that the children’s service was “inadequate”.

[257]That day, according to the media material put before me, The Sun had arranged for a billboard lorry with the words ‘Justice for Baby P’ to be driven to Haringey’s offices.

[258]According to the Claimant, when she returned home that evening she received the first of two death threats targeting her daughter. Her daughter, who had come to stay with her to give her support, had to leave London on the advice of the police.

[259]During that day an internal policy paper was prepared and circulated within the DCSF outlining the options available to the Secretary of State if either Ofsted “adjudge Haringey’s performance on safeguarding to be inadequate and options if performance is judged adequate overall with some issues of concern.” It was put forward with a view to “urgent discussion with the Secretary of State next week”. In the event of an “inadequate” finding by Ofsted, five main options were identified, one of which was the replacement of the “DCS and/or 2nd and some 3rd tier managers”. I will refer to this paper later (see paragraph 500).

[260]Although it is not recorded anywhere in the disclosed contemporaneous documentation, Ms Pugh says in her witness statement that the view was formed that if the report showed systemic weaknesses in Haringey then directing the replacement of the Claimant (possibly some supporting managers also) would be “the most appropriate option”. It is not clear whether this was the view that officials had formed with a view to its recommendation to the Secretary of State or whether it was the Secretary of State’s own view. Whatever the position, provisional plans were put in hand to ensure a state of preparedness if this eventuality should occur. The Secretary of State personally saw Mr Graham Badman (then DCS with Kent County Council) on 26 November to see if he would be willing to take up the post on an interim basis if the findings were negative. He was not prepared to do so, but Mr Coughlan was so prepared on a short term basis.

[261]Over the weekend of 22-23 November, The Sun said in its Saturday edition that its petition was up to 750,000 names. The Claimant says the press were around her home each day over the weekend. On Monday morning, The Sun said its petition had 850,000 names.

[262]During the week beginning 24 November, the Ofsted team (in the form of Ms Brown and Ms Ryan) continued the preparation of the report. Ms Brown and the Claimant were in touch by telephone on the morning of 24 November. At 10.30 am Ms Brown sent the Claimant an e-mail in the following terms:

“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…. ”

Thank you very much indeed for all your help with this… Take good care…. ”

Thank you very much indeed for all your help with this…

[263]The terms of that e-mail do have to be contrasted with what Ms Brown said in her witness statement when she said that “during the week commencing 24 November [the Claimant] and others on her behalf sent me further information in response to some of the concerns that we had raised, and requests that we had made, during the fieldwork.” That might have given the impression that this was all prompted solely by requests that had been made the previous week. It certainly was prompted by that, but Ms Brown had plainly sent on the morning of 24 November a detailed list of documents she and her colleagues wished to see. Ms Brown has explained the e-mail on the basis that it “did not state that there was no information outstanding, but simply indicated that we were not making any further requests for information.”

[264]At all events, following that e-mail and, as her witness statement implies, over the next couple of days there were e-mail exchanges in which electronic versions of documents were sent either by the Claimant or by others at Haringey in response to Ms Brown’s requests. The “written confirmation of the list of further information” referred to in her e-mail to the Claimant referred to in paragraph 256 above was disclosed in the further disclosure of Ofsted. It appears largely to seek statistical information as at 21 November 2008 of, for example, the number of children and young persons subject to child protection plans, the number of ‘looked after children’, the social care staff vacancies and the number of agency staff (including social care staff turnover figures for the previous six months) and so on. Specific information on one aspect of one particular case was requested. It culminated with the e-mail to which I have referred in paragraph 246 above.

[265]I should record what Ms Brown has said about what she and Ms Ryan were doing in these few days:

“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.”

[266]That witness statement, which ran to 60 pages and 292 paragraphs, was signed on 16 July 2009 and presumably represented the end product of work going back over several weeks at least. It was dealing with events of some six months earlier which themselves must have been uniquely challenging for Ms Brown (and for her other colleagues from Ofsted). It is, for example, clear that during the inspection and until the final report was effectively “signed off” on 1 December, Ms Brown in particular was working extremely long hours and probably getting very limited sleep (see paragraph 487 below). She said in that witness statement that she was unaware of any complaints that the Claimant had about the inspection or the report until the judicial review proceedings were commenced. If that is correct, it would not have been until March or April last year that she would have been invited to start trying to recall the precise circumstances again. Even with the availability of every piece of paper and every electronic communication generated during the period of the inspection and the drafting of the report, it would be surprising if every single sentence of a witness statement of that length would have been completely accurate. Despite the fact that a Statement of Truth was applied to the witness statement, the fact that something in it has been shown to be wrong does not necessarily make the statement dishonest in that respect.

[267]Mr Maurici has seized upon the expression “I wrote every word of it”, which he says has, in the light of the further disclosure by Ofsted, now been shown to be “patently untrue” or, at best, “misleading”.

[268]I do not know whether the invitation to me is to treat Ms Brown’s evidence on this issue as deliberately dishonest with the consequence that I should approach everything she asserts with very considerable circumspection. If so, I reject the invitation emphatically. I have already made plain that, given that I have not had the opportunity of assessing any witness in this case and no witness has been cross-examined, I cannot possibly draw conclusions of that nature about anyone. The same, I should add, applies to what I perceive to be Mr Ward’s attack on the Claimant’s credibility in relation to the issue of whether ‘the Baby P case’ was discussed during the inspection. It applies also to Mr Maurici’s assertion that the evidence of Mr Pullen that he had a “quality assurance role” only in relation to the drafting of the report and the evidence of Mr Shippam that his “editorial work” did not involve “material changes to judgments” were “patently untrue”.

[269]For reasons I have given previously (Section 4), I have adopted a more liberal approach to the evaluation of the written evidence in this case than I might have done in others and the kind of issues raised and the context to which I have just referred has reinforced my view that I have been right to do so. However, there are limits to that approach and any finding that someone has been deliberately dishonest is well beyond those limits.

[270]I suspect that Ms Brown, if now confronted with the sentence “I wrote every word of it”, would agree that, on reflection, that would not have been literally true. If (which seems unlikely) she had to hand the e-mail exchanges during the report-writing stage of the process that have now been revealed when she composed the witness statement, I doubt that she would have used that expression because it is plain that a number of people (including, of course, the other inspectors who were part of the inspection team) made their own contributions to the drafting. She was undoubtedly (as Lead Inspector) the initial primary drafter of the report and collected and collated the contributions of everyone else. Furthermore, she was the person who made the changes requested by Haringey at the meeting on 1 December 2008 using her laptop to do so. So she was, as it were, there at the beginning and there at the end of the process. But plainly others played a part in the production of the final draft. I do not think that that could possibly come as a surprise to anyone.

[271]I have not had the advantage of hearing evidence about where the dividing line is between “quality assurance” of a draft report and input into drafting parts of it per se. Quite where Mr Pullen’s role came in this spectrum is a little unclear to me, but I do not think it matters greatly for present purposes. So far as Mr Shippam is concerned, where a judgment was changed in the drafting process an element of judgment is itself involved upon which, as I have made clear, I am not required in this case to make any pronouncement.

[272]I will be returning to some aspects of the alterations to the draft reports later, but only in the context of endeavouring to resolve what was and was not raised with the Claimant during the inspection itself. I have interrupted my narrative concerning the chronology of the Ofsted inspection and report to deal with this particular issue. I now intend to return to that chronology.

[273]Ms Pugh has spoken of the position within the DCSF during this week (and at other times) and of the contact between the Department and Ofsted and has said that “Departmental officials were mindful not to discuss potential findings of the JAR.” Mr Lauener was in touch with Mr Shippam and Ms Rosen by e-mail that day concerning “possible timelines for this week and next week” and discussions concerning this appear to have continued until finalised on 27 November. Ms Pugh says this about those discussions and the agreement reached:

“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.”

[274]At Haringey there was a full Council meeting on 24 November and I have been told that the Opposition was calling for the resignation of the Leader of the Council and Lead Member.

[275]As indicated previously, 27 November was the day on which the Secretary of State’s article appeared in The Sun. The day before was the day he received the petition and it was also the day he spoke to Mr Badman (see paragraph 260 above).

[276]In the meantime there had been discussions at Haringey. There are differences of recollection about precisely how the discussions went, none of which I have to resolve for present purposes even if I could do so simply on the basis of the witness statements. Dr O’Donovan says that “in the days preceding … 27 November … the Leader and Cabinet Member had made it clear to me that they were likely to resign.” There had been discussions about the Claimant’s position, but nothing was resolved. There was a meeting of the Cabinet Advisory Board on 27 November.

[277]The Claimant has felt aggrieved that she was not to be a party to the events to take place on the Monday, 1 December, when the Ofsted report would be made available to Haringey. Dr O’Donovan has explained the position from her perspective in this way:

“… 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.”

[278]The precise arrangements concerning Haringey’s involvement with the events on Monday were finalised between the DCFS and Dr O’Donovan on the Friday, 28 November. As indicated, Dr O’Donovan decided that the Claimant should not be involved.

[279]I will deal with the issues arising out of this later. There is one particular issue that arose from the intervention of the team from Haringey that did meet at the DCSF offices on the Monday to which I will have to refer in a little detail later (see paragraphs 297-298 and 428).

[280]On any view, this must have been a very difficult week for everyone involved including, of course, the Claimant. I should record what she has said about that day because it is against that background that the text message she sent to Ms Brown that evening was sent. The message, according to Ms Brown, was as follows:

"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 ….”

Sharon."

[281]My only observation is that, whilst the text message might well give rise to the conclusion referred to by Ms Brown, it would be difficult to think that, notwithstanding her efforts to work through the week in a professional way, the Claimant had not by then at least realised that the report was not going to carry good news. That was emerging clearly fairly early the previous week. To that extent the text message adds little to the evidence. Whether the message itself makes comfortable reading for some of those engaged in the events of the time is a matter only they can answer.

[282]The full content of the text message was revealed in the late disclosure of Ofsted. It was set out in an e-mail from Ms Brown to Ms Gilbert and others within Ofsted at 20.53 on Thursday, 27 November, when the then draft of the report for the consideration of Ms Gilbert, Ms Rosen and Mr Shippam. Ms Brown said that it had been "clear that [the Claimant] has been under massive emotional pressure and distress due to the intrusive media coverage of her personal and work life." She went on to say that she was "very concerned for [her] emotional state". There is no evidence before me that these concerns (apparently shared by others in the inspection team) were passed to the Secretary of State on the following Monday morning.

[283]As I have indicated, the final arrangements concerning Haringey’s involvement on the Monday were not concluded until 28 November. Although not mentioned in her witness statement, it appears that Dr O’Donovan had spoken to Ms Gilbert that day to express her concerns about the limited time that Haringey would have to read the report. In an e-mail on the Friday evening, Ms Gilbert said that “Ofsted [had] made the best arrangements [it could] to accommodate the timescale required by the Secretary of State.”

[284]Mr Shippam says that the drafting of the report continued over the weekend of 29 and 30 November. His account of events is as follows:

“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.”

[285]The additional disclosure of Ofsted has added rather more to the bare bones that Mr Pullen's account gives. I will be returning to the relevance or otherwise of that greater detail in due course.

[286]The sequence of e-mails shows that Mr Shippam sent the final draft of the report and the evaluation of the SCR to Ms Gilbert at 16.14, she forwarded it to Mr Bell at 16.26 who forwarded it to Ms Pugh at 16.34. Ms Pugh indicates that the Secretary of State had come into the office to read the report. Her account of the reaction within the Department is as follows:

“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.”

[287]Although there were further meetings planned for the following morning, including the formal presentation of the final version of the report to the Secretary of State, there can be little doubt that the decision to take the intervention action that was announced the following day was taken on the back of consideration of this draft report. Since that is so, nothing that was said the following day in truth made any difference to the decision made even if, as recommended practice required, the Secretary of State was obliged to say to the Council that he was “minded to” take certain action before finally resolving to take that action (see paragraph 500). I will have to refer to some of the things said by the Ofsted representatives to the Secretary of State, but, as I have said, the clear inference is that those things did not influence the decision made by the Secretary of State.

[288]One of the amendments made to the report the following day was not, in my view, minor but it did not in reality affect the way the conclusions that the Secretary of State and his officials saw in the draft report on the Sunday evening were expressed. The relevant extract from the final version of the report, which carried the title ‘Review of services for children and young people, with particular reference to safeguarding’ set out its essential conclusion and findings in paragraph 7. It was in these terms: 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. Summary judgement Main findings

• 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.

• 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.

• 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.

• The standard of record keeping on case files across all agencies is inconsistent and often poor.

• 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.

• 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.

• 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.

• 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).

• ensure that all elected members have CRB checks.

• ensure that all elected members undertake safeguarding training.

Main findings

[289]That reflects the summary, the main findings and the recommendations. The report is backed up by a more detailed analysis over 12 pages or so, though not with the evidence upon which it was based. Ms Brown confirmed in her second witness statement that whilst all of the findings contained in the Report contributed to the overall conclusion appearing under the heading ‘Summary judgement’, some carried more weight than others. The key issues that carried the greatest weight in the assessment, she said, were those that impacted most directly on the safety of children. These are reflected in the bullet points that constitute the “main findings” of the inspection, although these bullet points, she emphasised, are general to all agencies, not simply to Haringey.

[290]That, however, was essentially what the Secretary of State saw in the late afternoon or early evening of 30 November. (iv) 1 December

[291]The first meeting on 1 December took place at 9am when Ms Gilbert and Ms Brown met the Secretary of State, Ms Hughes, Ms Pugh and other officials, including one official each from the Department of Health and the Home Office. Ms Pugh took notes and they have been typed up subsequently. It appears that Ms Gilbert and Ms Brown developed themes appearing in the report. Mr Maurici submits that they went further than what had been included in the report. He says, correctly, that it is Ofsted’s case that the inspection was not an inquiry into the conduct of a specific individual – or even a single agency – and that is not the practice to name anyone in a report. Indeed the report does not do so. Yet the notes reveal that comments were made directly about the Claimant. It appears from the notes that Ms Brown said that she (the Claimant) had engaged in a lot of ‘finger-pointing’ at her Deputy (Cecilia Hitchen) and that Ms Gilbert had observed that “the DCS has got no grip and relied on No 2 who couldn’t hack it.”

[292]All that was said of this meeting on behalf of Ofsted was said by Ms Brown in her witness statement when she said that she and Ms Gilbert had presented the report to the Secretary of State “formally”, although she said that the meeting lasted an hour. I do not think that conveys anything like the full contents of the discussion with the Secretary of State, his ministerial colleagues and his officials.

[293]If this was the way things were said at this meeting then I am bound to say it was unfortunate. Whether the observations were justified intrinsically or not, it might, with hindsight, have been better simply to allow the report to speak for itself, certainly if the Claimant had not had a fair opportunity of answering what could be taken as directly critical comments of her. Nor, for that matter, did Ms Hitchen whose professional qualifications and experience as a social worker, and whose expressed concerns to Mr Hart about attracting permanent staff (a problem plainly not unique to Haringey), were dismissed in the expression that “she couldn’t hack it”. It is, I am bound to say, also unattractive to use the expression “finger-pointing” (on the assumption that it was used) when the discussion with the Claimant presumably giving rise to the comment was deliberately designed to be “open ... in which [she was] encouraged to share her views with us”: see paragraph 238 of Ms Brown’s first witness statement. Mr Maurici was also entitled to say that Ms Ryan’s handwritten notes of that discussion (revealed as part of the late disclosure by Ofsted) did not really justify the assertion that the Claimant was trying to blame Ms Hitchen for any failings in the Children’s Department that there may have been. The only entry in the RoE that reflects on this is a record made by, I believe, Ms Ryan of the conversation between Ms Brown, Ms Ryan and the Claimant when the Claimant was interviewed as DCS when it is recorded that that she held regular meetings with the Deputy Director “but finds a lack of openness in sharing information, particularly about interpretation of the [performance indicators] … [against] quality of practice on the ground.” It is also recorded that the Deputy Director was “fiercely protective of her team”. This seems a slender basis for using an expression such as “finger-pointing”. At all events, Mr Maurici says that the comments referred to in paragraph 291 above were apparently used to justify something said by the Secretary of State in his press statement later (see paragraph 303). That is probably correct, but I am not satisfied that it takes his legal case on the Claimant’s behalf any further. As I have said, the decision of the Secretary of State to act as he did was almost certainly taken the day before. It is true, of course, that he could have changed his mind, but I think that that would be a fanciful suggestion in the circumstances.

[294]If anything was said at the meeting that would have reinforced the decision already made, it was Ofsted’s opinion that Haringey was “exceptionally bad” in the nature of “management and systemic failing.” Whilst that comment would have reflected on the Claimant since she was head of the team, it would have reflected on others and indeed the whole system in place. As I have said before, it is not for me to assess whether such a judgment was correct or not. On the assumption that it was an honest assessment and, to the extent that the Secretary of State relied upon it, he would not have been misled. However, its influence was, in my view, tangential.

[295]The (as yet still) draft report was shown to the Haringey representatives after the meeting with the Secretary of State had concluded. According to Ms Brown's first witness statement, Mr Shippam and Ms Rosen met those attending from Haringey at about 10.00 am and she and Ms Gilbert joined at about 11.00 am. Although the outcome of this meeting would have had no direct bearing on the Secretary of State’s decision, there is one general aspect of it that is criticised on the Claimant’s behalf in relation to her case against Haringey and one more particular feature of what occurred (revealed following the further disclosure from Ofsted) that she asserts was unfair. As to the general matter, it is suggested that Haringey did not take anyone who could check the report for factual accuracy which, according to an e-mail evidencing a telephone conversation between Mr Lauener and Dr O’Donovan on 28 November, was apparently intended. Dr O’Donovan asserts that she took two senior officers with her, one from the CYPS, the other being the person who had acted as link officer for the inspection, both of whom, she says, “had been closely involved in the inspection and were familiar with matters that had been raised in questions and interviews during its conduct.” I understand these people to have been Sharon Kemp (see paragraph 185 above) and Jan Doust, who held a senior post in the CYPS. The Claimant says that Ms Doust did not work within social care and would not have had the knowledge to make any meaningful comment on the draft report.

[296]I am not in a position to resolve the issue of whether these two people would have been able effectively to challenge the content or conclusions of the draft report, but it is highly unlikely, given the timescale within which everyone was operating, that any effective challenge could have been mounted even by someone intimately associated with all aspects of the inspection. The extent to which this consideration ought to have had a bearing on the disciplinary hearings conducted by the Council later in the chronology is something to which I will return.

[297]As to the more specific matter concerning this meeting, I will be referring to it again later (see paragraph 428). However, it is convenient to mention it now. Ms Brown says that they "had a very open discussion" about the draft report and recalled two concerns being raised, the first concerning the reference to the Climbié Report which was said by those present to be “inflammatory”. She said they were asked to remove it but "refused to do so as we considered the failings in this regard to be very important". The second, she said, arose from Dr O'Donovan and the elected members querying whether they "could be expected to intervene in the work of staff and managers at HCCS." Ms Brown said that, in their view, it was critical that they provided such challenge. She went on to say that as a result of comments made "we agreed to make some minor changes to the wording of the Report." As will become apparent in due course, it has emerged that that involved a change from the suggestion that appeared in the draft report that "members and senior officers ... [failed] to ensure full compliance with some requirements of the Climbié Inquiry recommendations" (my emphasis) to the finding that there was "a managerial failure to ensure full compliance with some requirements of the inquiry into the death of Victoria Climbié ..." (my emphasis again). In other words, the blame for any failure to comply with aspects of the Victoria Climbié Inquiry recommendations was shifted from a combined failure on the part of members of the Council and officers to an entirely managerial failure. The shift of blame is not, of course, directed solely at the Claimant, but she was head of the management team and would have been identified as one of those responsible for the "managerial failure".

[298]I make absolutely no comment on whether the general assertion as to a failure along these lines was or was not justified: that is not my concern in these proceedings. However, given the sensitive nature of any such assertion, it can hardly be said to be fair for an alteration of this nature to be made at the behest of a member or members of the Council (and thus an alteration in their interests) when no member of the management team upon whom the blame was thus sought to be placed was present, or had any opportunity, to refute the suggestion of sole managerial responsibility. I shall be returning to this matter when considering the issue of whether the gist of Ofsted's concerns were ventilated with the Claimant, but I do not think this kind of alteration to the draft report can be characterised as a "minor [change] to the wording": it is a substantive change to a critical comment on a very sensitive matter. Given that, in due course, Haringey dismissed the Claimant (and, possibly, others) on the basis of management shortcomings revealed in the report (see paragraphs 334 and 361), it is arguably of concern that agreement to an alteration of this nature should have occurred. Dr O'Donovan, who had been at the meeting with Ms Brown, had not mentioned this matter in her witness statement so that the precise nature of the change made was not revealed until disclosed by Ofsted.

[299]At all events, having made those observations, I have no doubt that the Secretary of State's decision had already been made on the basis of the draft he had seen and the subsequent alteration would have made no difference to it.

[300]When the final version of the report had been formulated it was given to the Council representatives, some of whom then met the Secretary of State and Ms Hughes at about mid-day. There was no one from the CYPS present. According to Ms Pugh’s note, the Leader of the Council (who it seems had been instrumental in arguing for the alteration to which I have referred) said the report was “a devastating report” that showed that the services were not adequate and that therefore children were not being protected. He said that he was not going to argue and “was on the same page as the Government.” The Secretary of State indicated what he was "minded" to do.

[301]The Secretary of State’s directions were issued at about 12.30pm. There was a recital which indicated that the Secretary of State was “satisfied that [Haringey is] failing to perform to an adequate standard certain functions to which [section 497A] applies” and further that the findings of the Ofsted report “[are] that the work of the LSCB is insufficiently robust and the current management arrangements do not facilitate sufficient independent challenge on safeguarding matters and the recommendation and report is that an independent person be appointed to chair the LSCB”. The relevant parts of the directions were in these terms:

“(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.”

[302]The Secretary of State did not announce his decision in Parliament, but held a press conference at 14.00 and began by making a statement. The statement set out the history of the ‘Baby P’ case and then set out a number of the main findings of the report. One additional feature of the statement, not contained in the report, was when the Secretary of State said this:

“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.”

[303]In fact, no such opinion appears in the ‘Summary judgement’: since it is not the policy of Ofsted to mention individuals, it is unlikely that it would have been recorded in the report. It is that comment that Mr Maurici says (almost certainly correctly) was induced by what was said by Ms Brown and Ms Gilbert to the Secretary of State earlier that morning (see paragraph 291 above). Whether the opinion represented the reality of the position within Haringey or not (and again it is not for me to say), it is unfortunate (and, one has to say, intrinsically unfair) that it was repeated in such a public setting without the Claimant, or indeed her Deputy, having had a full and fair opportunity to refute it. It went to their respective abilities and competence. Indeed it was a public comment such as this, taken along with comments about "fitness for office", that is arguably more likely to have affected the future careers of the Claimant and her Deputy than the actual decision to replace them because of weaknesses found in the system within Haringey for which they held ultimate responsibility.

[304]The Secretary of State continued thus:

“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.”

[305]There are three particular features of what the Secretary of State said in answer to questions following his statement to which Mr Maurici draws attention:

[306]First, his replies to some questions put by Mr George Pascoe-Watson of The Sun. Mr Pascoe-Watson put the following question to which the answer was recorded as follows:

“Q. First of all, can you confirm that Sharon Shoesmith 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.”

[307]Second, his reply to a question put by Emily Reuben of Channel 4. The question and answer were as follows:

“Q. First of all, I wanted to ask you, were you surprised that Sharon Shoesmith 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, Sharon Shoesmith 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 Sharon Shoesmith 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. Why didn’t Sharon Shoesmith resign?

[308]Third, an interchange between Mr John Carvel, Social Affairs Editor of The Guardian:

“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, Mrs Shoesmith, 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.”

[309]I will return to the significance of these matters from Mr Maurici’s point of view in due course.

[310]These were the things said at the time and are indicative of the factors taken into account by the Secretary of State in acting as he did.Ms Pugh has set out in her first witness statement on behalf of the Secretary of State the factors said to have been taken into account by him in making the directions he did on 1 December (and those also under challenge made on 19 December: see paragraph 364). It will be convenient to set out what she says here, but it will be necessary to return to some aspects of what she says later. “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.” …

[311]As I have said, I will return to aspects of that evidence later.

[312]Haringey also held a live televised press conference that day. Councillor Meehan and Councillor Santry announced their resignations from their positions as Leader and LM respectively at the press conference. Councillor Lorna Reith had assumed the role of Acting Leader pending the election or appointment of a new Leader. Aspects of what she and Dr O’Donovan said at the press conference are criticized by Mr Maurici and, in fairness to them and to do justice to his argument, I should set out in full their statements.

[313]Councillor Reith said this:

“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.”

[314]Dr O’Donovan said this:

“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.”

[315]Mr Maurici submits that reference by Dr O’Donovan to the intention to “follow the legal process as speedily as possible” conveyed the meaning that the Claimant was to be dismissed as quickly as possible in line with the Secretary of State’s wishes. He also criticizes what was apparently said by her in a supplementary answer to a member of the press when she said the Claimant would not receive a "pay-off". I do not understand Dr O’Donovan to dispute that she gave an answer broadly to this effect (although not precisely in the words quoted). I have not been shown a transcript of the press conference, but a press report in The Evening Standard on the following day records the Chief Executive as having “yesterday insisted that there would be no compensation package” for the Claimant. There is also a press report in the material before me suggesting that the “acting Haringey Council chief said she ‘did not expect there to be packages’”. At all events, it would appear that there were at very least strong hints made either by Dr O’Donovan or Councillor Reith or both that there would be no “pay-off”. Councillor Reith expressly acknowledged “the failings in our service identified in the report”, a further matter upon which Mr Maurici relies to suggest that she should not have been on the Panel of 8 December (see paragraph 322 et seq below).

[316]All this had occurred within the few hours between 9am and about 3pm. The Claimant, who had returned to her flat the previous evening, says that she found herself trapped in it for the whole week until the next Saturday because of a press presence around it. This is something she told the Statutory Panel Dismissal Hearing on Monday, 8 December, just one week later.

[317]The Claimant’s account is that the first she knew of her removal from office by the Secretary of State was when she saw the press conference on television. During the course of it, she received a telephone call from Mr Young saying that she had been suspended, on her account, for “poor leadership and the presentation of incorrect information to members”, although Mr Young believes he told her that there was “a trust and confidence issue”. Nothing turns on the difference between them for present purposes.

(v) 2 December 2008 – 12 January 2009

[318]The next day Dr O’Donovan sent the Claimant a letter confirming her suspension in the following terms:

“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.”

[319]If the Claimant had been able to get out of her flat and buy the newspapers that day she would have found a number of newspapers very hostile to the suggestion that she should receive “a penny”. The Sun and The Daily Star suggested that if she was to receive any money it would be “blood money”. A number of MPs, including Ms Featherstone MP, were reported as saying that she should receive no compensation.

[320]On 3 December Dr O’Donovan wrote in what Mr Maurici contends are important terms to Ms Brown at Ofsted:

“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.”

I look forward to hearing from you as soon as is reasonably possible.”

[321]The reference to paragraphs 35-44 and paragraph 47 is to those paragraphs in the report that give more detail underlying some of the principal features of the summary judgment, particularly in relation to management issues.

[322]On the same day Mr Young wrote to the Claimant requiring her to attend a meeting under the Statutory Dismissal Procedures at 9am on Monday, 8 December. The purpose of the meeting was said to be to address the following issue:

“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.”

[323]It is to be noted that a foreshortening of the notice period was proposed in view of the “exceptional circumstances of the public interest surrounding [her] position”. It is said on behalf of Haringey that the Claimant did not object to this suggestion. That is undoubtedly true. However, it is also true that she had virtually no practical opportunity to take informed and considered legal advice about the position. When the background to an important hearing such as a dismissal hearing is itself complicated (by, for example, concerns about the “evidence base” underlying the management’s case and the need to provide the employee with an opportunity to prepare to meet that case), an extension, rather than an abridgement, of the usual period would normally be considered “fair” procedure.

[324]I understand that Dr O’Donovan’s letter to Ms Brown to which I referred in paragraph 320 above (and indeed the reply to it referred to below) was not disclosed as part of the Council’s disclosure in this case. Furthermore, there is no reference to it in Mr Young's first witness statement. No reference was made to it either before or in the disciplinary and appeal hearings conducted by Haringey. It came to light only within the initial disclosure made by Ofsted in these proceedings. I am surprised that that should have been so: it could have been important that the Claimant knew about it before the disciplinary hearings and it was certainly relevant to the general issue raised in this application of the fairness of the procedures adopted by the Council in its disciplinary hearings. Dr O’Donovan makes reference to it in her witness statement of 1 October, but by the time her statement came to be prepared the letter had been disclosed by Ofsted. Dr O’Donovan had received a response to the letter (which, as can be seen, was e-mailed to Ms Brown) on behalf of Ms Gilbert to whom the request had been referred. The reply was sent on 4 December on Ms Gilbert’s behalf by Keryn Bell, but was signed ‘Christine’, and was in these terms:

“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.”

[325]It is clear, therefore, that whatever might emerge at the meeting proposed by Ms Gilbert the “evidence base” would not be revealed “directly”. Mr Maurici has submitted that it is obvious that at some point before the hearing on 8 December the Council abandoned its plan to hold an “investigation” (see paragraph 318 above) and Mr Young accepts that this was so. As I understand Mr Young’s witness statements, his view that an investigation was not required did not arise from the receipt of Ms Gilbert’s e-mail, but as a result of “further reflection” on his part after he had sent his letter.

[326]The meeting with Ofsted did not take place until 10 December and thus after the first disciplinary hearing took place and the decision to dismiss the Claimant was taken. I will be referring to that meeting later (see paragraphs 342-347).

[327]It is plain, therefore, that the position to be deployed by the Council and the hearing the following Monday would depend solely upon the Secretary of State’s decision and the findings in the report.

[328]Apart from noting that the media interest in the case continued unabated during this week, with continued calls for the Claimant (and others) to be sacked without compensation, there is little else to record about the events of that week save to note a press report of an interview given by Ms Gilbert. In an interview with The Guardian reported on 6 December (and taken up by other newspapers) she was reported as suggesting that the favourable Ofsted review in 2007 (see paragraph 85 above) was achieved by Haringey as a result of the provision of “inaccurate data” to Ofsted by “managers in Haringey”, a claim, incidentally, reported to be have been challenged subsequently by the Chairman of SOLACE (the Society of Local Authority Chief Executives and Senior Managers) and for which, it appears, the evidence to back it up had been destroyed.

[329]In the week before the disciplinary hearing the Claimant was, as I have indicated, effectively housebound until the Saturday. She had no ready access to any legal advice during that week, although one thing she said at the hearing suggests she had made some preliminary contact with “lawyers”. The circumstances were plainly not conducive to obtaining informed legal advice and when she attended the hearing on the Monday she was accompanied by Mr Richard Penn. Mr Penn had, I understand, had a lengthy career in local government, had served as a Chief Executive in two large borough councils and, following his retirement from active local government work, had become a freelance consultant on employment issues for Chief Executives and Senior Managers and who had worked both for SOLACE and ALACE (the Association of Local Authority Chief Executives). Whilst I have no doubt Mr Penn would have provided admirable support for the Claimant, he was not a lawyer and would not have been able to deploy effectively any legal submissions about her contractual position with the Council that might have been deployed and would have been in no position to advance a significant challenge to the management’s position. In fact, according to the transcript of the hearing which is with the papers before the court, he played little, if any, part in the proceedings. It is noticeable that Mr Young in his letters to the Claimant made frequent reference to the fact that she had been “represented” by Mr Penn, but this is certainly not the impression given by the transcript. It is right to say that the management side was not represented by a lawyer either, but the panel of Councillors had available to them a legal adviser.

[330]The panel of Councillors consisted of Councillors Griffith, Reith and Whyte and had Mr Dave Burn (who has instructed Miss Ingrid Simler QC in the proceedings before me) as its Legal Advisor and two other people, Mr Clifford Hart (Committee Manager) and Ms Anne Thomas (Clerk) as other "Advisors".

[331]For reasons which will become apparent in due course, I will endeavour to be as circumspect as possible about my comments on the disciplinary processes within Haringey in this judgment. That includes the conduct of this hearing. However, so that a number of points made by Mr Maurici in support of his general unfairness argument are put into context, there are a number of primarily factual observations to be made: 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”.

[332]I should perhaps record that the Claimant makes clear at the outset of her presentation to the Panel that she was not seeking “to attribute blame or cast any aspersions upon any other person” and that she was “not in any blame game.” Given that she had, unknown to her, been accused by Ms Brown of “finger-pointing” (see paragraph 291 above) it is, perhaps, only fair to record that. I should also say that, although she spoke at some length, it is not clear what access she had had to any papers concerning management issues at Haringey. I rather suspect none at all given that she had not been able to go to the offices that week.

[333]At all events, the hearing proceeded in the manner I have indicated and the Panel came to the conclusion reflected in the letter sent by Mr Young to the Claimant referred to in paragraph 337 below.

[334]On the day of the hearing at 18.32 Dr O’Donovan e-mailed all staff in the following terms:

“This is to inform you that today Sharon Shoesmith 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 Sharon Shoesmith 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 ….”

[335]That e-mail was sent before the letter to which I will refer in the next paragraph was received by the Claimant although it is right to say that Mr Young telephoned the Claimant at about 3 pm on the day of the hearing to tell her the result. It appears from the final paragraph of his letter (which is not reproduced here) that she “expressed a desire to appeal as soon as possible” and indeed 15 December (less than a week later) had provisionally been agreed. In other words, it looks as though she indicated immediately a desire to appeal and certainly well within the 10-day period apparently set by the Council’s disciplinary procedures. I am unsure, in those circumstances, why Ms Simler suggested that “there was all likelihood in the circumstances of this case that she would not [appeal]” and that she did not do so until shortly before 22 December. On that date Mr Clifford Hart, the Haringey Committees Manager, wrote to the Claimant indicating formally that the appeal had been set for some dates in early January as arranged with her representatives. By then Mr Tony Child (see paragraph 349 below) had been instructed to represent her. I do not see any evidence of any reluctance on her part to appeal.

[336]I interrupt this part of the narrative simply to record that it was on this day that Ms Brown circulated her memorandum to her colleagues in Ofsted reflecting on the circumstances of the inspection. I will be returning to that in due course: see paragraph 487.

[337]In his letter dated 9 December 2008 (exactly 4 weeks after the verdicts in the criminal case had been returned) Mr Young wrote to the Claimant in the following terms:

“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. ….”

[338]The same day Dr O’Donovan issued a Statement in the following terms:

“Sharon Shoesmith has been dismissed from Haringey Council with immediate effect. The decision was taken on Monday by a panel of councillors. Ms Shoesmith 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 Ms Shoesmith 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.”

[339]She also wrote to Head Teachers and Chairs of Governors in Haringey (virtually all of whom had supported the Claimant in the letter to The Times a few weeks before) in substantially the same terms as the e-mail sent to members of staff (see paragraph 334 above).

[340]So that the full picture is presented, I should record that there is in the papers before me a press report from The Observer that shows that the Head Teachers and Chairs of Governors were not happy with the way Haringey had behaved in its treatment of the Claimant. They are reported as expressing the following view in a letter dated 16 December (presumably in response to Dr O’Donovan’s letter):

“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.”

[341]Leaving aside other comments that Mr Maurici makes about this whole process, he complains that there was no suggestion in the Press Statement or the e-mail to the Head Teachers that there was still a further procedure to be gone through, no suggestion that there was a right of appeal and that decisions might change in consequence of that. He submits that this represents another piece of evidence indicating a pre-determined outcome of the internal processes at Haringey or at least the appearance of a pre-determined outcome. It will be noted that the Panel expressly said that it “took no account of the statement by the Chief Executive at the Press Conference on 1st December 2008 in reaching its decision”, presumably because it was felt that it gave an appearance that the issue had been pre-determined. No reference was made at the hearing to anything said by Councillor Reith at the Press Conference (see paragraphs 313-315 above).

[342]The meeting between Ofsted representatives and Haringey representatives foreshadowed in Ms Gilbert’s e-mail of 4 December (see paragraph 324 above) took place on 10 December. Those present from Ofsted were Mr Pullen and Ms Brown. Haringey was represented by Dr O’Donovan, Mr Young and Mr Coughlan. Two sets of notes taken at the meeting have been disclosed. Mr Pullen’s notes were disclosed on 8 September 2009 and a typed version of notes taken by Mr Young was disclosed by way of being exhibited to his witness statement of 1 October 2009. The handwritten notes upon which they were based were disclosed subsequently.

[343]Mr Pullen’s note does indicate Dr O’Donovan saying at the outset that the meeting was not about challenging the findings of the report, but about planning an action plan and talking about HR issues (presumably, Human Resources issues). Mr Pullen has recorded the words “anything that firms up case” and Mr Coughlan is credited in the note with mentioning “detailed evidence behind findings”. According to Mr Pullen’s note, Ms Brown indicates that she is aware that they wanted “feedback on managers and frontline workers.” The note indicates that the representatives of Haringey at the meeting were asking whether there was anything beyond the general statement that appeared in the report to the effect that the strategic leadership was inadequate. There was, according to the notes, a discussion about the relationship of the Deputy Director with the Claimant and of other management issues.

[344]If one stopped there, this would be the kind of discussion that might well have been anticipated given the terms of Dr O’Donovan’s letter to Ms Brown referred to in paragraph 320 above in which she indicated that the Council is “giving immediate consideration to the employment aspects of the direction issued by the Secretary of State as well as the findings of the report ….” Given the reference to the suspension of three members of staff, including the DCS, in the next sentence, there can be little doubt that “firming up” the evidence for dismissal must have been something in Dr O’Donovan’s mind at the time she wrote the letter. The notes would suggest that this remained the position on 10 December, even though the Claimant’s dismissal had already been decided upon (subject, of course, to the outcome of any appeal), but equally the disciplinary process relating to others who had been suspended had not then taken place.

[345]Mr Maurici has made a number of points about this meeting (which, he says, indicates that Ofsted was going beyond its proper remit), including the suggestion that Dr O’Donovan and Mr Young have not acknowledged that one of the purposes of the meeting from their perspective was to seek evidence to support the Claimant’s dismissal. He suggests that Mr Young’s notes, which do not cover aspects of the meeting covered by Mr Pullen’s notes, are not accurate in that regard.

[346]I cannot resolve this kind of question on the basis of the written evidence solely. However, it must be said that one construction of the notes taken by Mr Pullen is plainly that one of the purposes of the meeting from Haringey’s point of view was to obtain further evidence from Ofsted for its ongoing dismissal procedures, as is the conclusion to be drawn from Dr O’Donovan’s letter to Ms Brown. Indeed it is clear from some aspects of the subsequent disclosure by Ofsted that Ms Brown thought that this was Haringey's essential motive too. As I say, I remain surprised that the letter, the response and this meeting were not revealed in Haringey’s evidence at an earlier stage in these proceedings.

[347]As I have said, however, the true construction to be placed on the purpose of the meeting of 10 December is something that could not be judged without having heard from the individuals concerned. As far as I can judge, nothing that was said by Ofsted at the meeting was used as part of the case against the Claimant at the Appeal hearing. The relevance of the meeting is much more to do with the strength of Haringey’s position vis-à-vis the Claimant in the context of the termination of her contract of employment.

[348]At the initial hearing the Panel would not, of course, have been aware of the reservations that Ms Brown had of some aspects of the inspection process which are referred to in the memorandum I quote in full at paragraph 487 below. Perhaps not surprisingly in the circumstances, it does not appear that she revealed them to Haringey when she attended this meeting either. Nor, of course, would anyone at Haringey at that time have appreciated the process by which the final form of the report was arrived at. It is possible (and I deliberately put it no higher than that) that they might not have been quite so confident in their decision to accept some aspects of the report without question and quite so confident in their decision to dismiss the Claimant (and others) without compensation had they known of the problems with the inspection and the process by which the final report assumed the form it did. They were, on my interpretation of the evidence, trying to find out why the Ofsted inspection came to the conclusions it did (particularly since all the previous Ofsted evaluations had been essentially positive), but were denied that knowledge.

[349]The Claimant’s appeal was heard by a Dismissal Appeal Panel on 7, 8 and 12 January 2009. The Panel consisted of Councillors Ray Dodds, Sheila Peacock and Lyn Webber. On this occasion the Claimant was represented by Mr Tony Child, a partner in Messrs Beachcroft LLP, the firm that has instructed Mr Maurici on her behalf in the proceedings before me.

[350]At the outset of the hearing Mr Child raised the question of whether the Panel felt able to give the Claimant a fair hearing given the intense media pressure, statements from local MPs about “what they expect the outcome to be today” and statements made on behalf of the Council itself.

[351]Councillor Dodds answered robustly that he and his colleagues would deal with the case on the basis of the evidence and would not be influenced by any external factors. He said that the hearing would be a complete re-hearing.

[352]The hearing proceeded with Mr Young explaining that the basis for saying that there was “some other substantial reason” for the Claimant’s dismissal within the terms of the unfair dismissal regime was that the Council “has little option other than to consider dismissal once the Secretary of State’s Direction was issued on …1 December 2008.” He said that the substance of the allegation was the same as the allegation considered on 8 December. He said that “firstly and primarily” the ground for dismissal was the Secretary of State’s directions which made the Claimant’s “continued employment … in the role of Director untenable.” Second, and he said “very much a secondary part of it”, was that paragraph 7 of the Ofsted report (see paragraph 288 above) “in its totality calls into question the management of the service … [and was such as to] undermine the relationship of trust and confidence that the Council would ordinarily expect to have with [the Claimant] as an employee in the role of Director.”

[353]Mr Young called no further evidence. It is to be noted that he placed the alleged undermining of trust and confidence as "very much the secondary part" for justifying the grounds of dismissal. Put that way it does raise the question, which may arise elsewhere, as to the true extent to which it was being, or could be, relied upon from the contractual point of view.

[354]Mr Child made a legal submission that the Secretary of State’s decision was illegal. The Panel’s ruling on this, having taken legal advice, was in these terms:

“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.”

[355]Mr Child asked the Panel to revisit its ruling in the light of two other authorities. The panel did so, but reaffirmed its earlier ruling.

[356]It may also be of significance to note that Mr Child also raised the argument that it was important for Haringey to have reached a decision on the merits and not simply to accept what somebody else (ie. the Secretary of State) had concluded. He invited consideration to the question, particularly in the context of the Claimant’s acknowledged success in the educational field at Haringey, as to whether her managerial skills might be deployed elsewhere within the Council. He put it this way:

“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.”

[357]I would merely observe that, if the Claimant’s proceedings in the Employment Tribunal proceed, the extent to which this issue was addressed by Haringey may be of relevance in those proceedings. Although Ms Simler has submitted that the matter was addressed, there is no evidence before me that the issue was addressed by the Council at that hearing.

[358]Returning to the proceedings before the panel, after the panel’s ruling the Claimant gave her evidence. She gave a full and detailed account of what had happened and of her attitude to aspects of the Ofsted report. Indeed she dealt with very many aspects of the report and on the critical review by Ofsted of the SCR.

[359]On the afternoon of 7 January, the Claimant spoke from about 2.20 until 5 pm with a break of about 10 minutes. The following day the hearing recommenced at about 9.40 am and the Claimant continued dealing with the Ofsted report. She did so until about 11.20. There was then a break of 20 minutes and she continued further before answering questions from Mr Young and the panel until about 1.10 pm. Closing submissions took place during the afternoon and the panel then decided to adjourn until the Monday (12 January) to consider its decision.

[360]I interrupt this narrative to record that an article appeared in The Sun on Friday, 9 January, which gave an account of what had taken place at the hearing over the previous day or so. The matter was raised both by Mr Young and Mr Child when the panel reconvened. Everyone was concerned that information about what was intended to be a private hearing had apparently been “leaked”. Mr Child raised the suggestion that this was another attempt to place pressure on the panel to reach a particular conclusion.

[361]The Chairman expressed his anger at what had occurred, but said it would make no difference. The panel adjourned to deliberate at 10.23 am and reconvened at 1.42 pm. The decision was announced orally and then confirmed in the terms of a letter to the Claimant dated 19 January which was as follows:

“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.”

On that basis, the Panel dismissed the appeal and the summary dismissal was upheld.”

[362]With that the Claimant’s appeal rights at Haringey were exhausted and she was left with such remedies as the law provided to her.

[363]It was against the whole background to which I have referred that the present proceedings were instituted and the Employment Tribunal proceedings were commenced on 6 March 2009.

[12]The history of these proceedings

[364]As I have indicated, these judicial review claims were issued on 6 March. They relate to the Secretary of State’s directions on 1 Dec 2008, his consequential direction on 19 December to appoint Mr Peter Lewis as permanent DCS at Haringey, the Ofsted report published on 1 December 2008 and Haringey’s decision to dismiss the Claimant on 8 December 2008 and confirmed on 12 January 2009.

[365]In a witness statement dated 6 March Mr Child explained that the delay by the need to put in place funding to enable the judicial review proceedings to be brought.

[366]As indicated in paragraphs 17-18, Mr David Holgate QC could see no basis for declining to grant permission on the grounds of delay. The only party to raise the point before me is Haringey. Ms Simler has submitted, as I understood her, that since what the Claimant is effectively challenging so far as Haringey is concerned is reliance upon matters that occurred on 1 December 2008, the 3-month period within which claims should normally be brought should run from then. Alternatively, she argued that if the Claimant was justified in waiting until the hearing of 8 December, the delay from then until 6 March was not justified.

[367]I see no merit in these arguments. If forced to make a decision on the issue, I would have said that the Claimant was entitled to await the outcome of the appeal hearing in January 2009 before instituting judicial review proceedings against Haringey. To fail to have done this would have run the risk of Haringey arguing that she had not exhausted all other remedies before instituting judicial review proceedings. But there can be no doubt that, through Mr Child, she was trying to put in place funding to bring this claim and Haringey was aware that Mr Child was waiting for a full transcript of the appeal hearing which was not made available in draft form until 2 March.

[13]Legal discussion (a). the Secretary of State’s decision

[368]The terms of the Secretary of State’s direction are set out at paragraph 301. It is not disputed that he had the power to make the direction that he did. His motive is questioned and the fairness of the procedure that led to it is also questioned in these proceedings.

[369]Equally, whilst each basis of her challenge is rejected, it is not disputed on the Secretary of State’s behalf that the Claimant has a right to pursue an application for judicial review and there is no suggestion on his behalf that there are other avenues she should have pursued before pursing him in this way. As I have understood the position taken on the Secretary of State’s behalf, it is that, since the effect of his decision was to remove the Claimant from her statutory office as DCS, she is entitled, if grounds could be shown, to challenge the decision by way of judicial review. It is, however, said on his behalf that he did not bring her contract of employment to an end: that was a matter for Haringey.

[370]I have no doubt that, technically speaking, that last assertion on the Secretary of State’s behalf is correct. However, the distinction between replacing the occupant of a statutory office and terminating the relevant contract of employment is, on any view, a fine one and, certainly in the public perception, the Claimant will be seen to have been “sacked” by the Secretary of State. I imagine that this is at least in part why it is accepted on the Secretary of State’s behalf that some degree of fairness ought, in principle, to be required in circumstances such as those that have arisen in this case. The issue seems to be the extent of the obligation to act fairly, whether it was achieved in practice and if, for any reason, the process fell short of what was required, whether it would have made any difference to the outcome if a higher degree of fairness to the Claimant had been shown.

[371]Mr Maurici’s principal submission is that there is high judicial authority to the effect that no one should be removed from a statutory office (which the Claimant, as DCS, held) without being told what is relied on to support the removal and been given an opportunity to put his or her case in response. He relies on Ridge v Baldwin

[1964] AC 40

, Malloch v Aberdeen Corporation

[1971] 1 WLR 1578

and McLaughlin v The Governor of the Cayman Islands

[2007] 1 WLR 2839

, in particular. He does not suggest that the Claimant should necessarily have been given the opportunity to make oral representations to the Secretary of State, but that she should have had “some opportunity” to state her position before he made his adverse decision about her position. Mr Maurici says this is particularly important where the decision affects the livelihood of the individual concerned and may, as is suggested here, result in the person never working again. In this case the Secretary of State relied on the Ofsted report to remove the Claimant from her office, a report which she had no opportunity to comment upon or endeavour to refute before the decision was made and announced. On any analysis, Mr Maurici submits, that is unfair.

[372]On behalf of the Secretary of State, Mr Eadie contends that the principles of natural justice (which he does not suggest do not apply in principle) did not require in the circumstances an obligation upon the Secretary of State to afford the Claimant an opportunity to make representations to him. As I understood the argument, it was that provided the Claimant had had an opportunity to have “a meaningful input” into addressing “the substance of the areas of concern driving the main conclusions on which the decision [was] based”, then the requirements of natural justice have been satisfied.

[373]In support of that proposition, Mr Eadie submits (and it is not disputed) that the requirements of procedural fairness or natural justiceare “not engraved on tablets of stone”: Lloyd v. McMahon

[1987] AC 625

, 702. They are context specific and what they demand in any particular situation will depend on the circumstances of the case and the subject matter under consideration. He emphasises the words “very often” in paragraph 5 of the oft-quoted passage in the opinion of Lord Mustill in R v. Secretary of State for the Home Department, ex p Doody

[1994] 1 AC 531

, 560. It is, I think, worth setting out the passage in full:

“… 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.”

[374]This theme was taken up by Bingham LJ (as he then was) in R v Chief Constable of Thames Valley Police, ex p Cotton

[1990] IRLR 344

, where he said this of the duty of the Chief Constable in that case:

“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.”

[375]In deciding what the principle of fairness demanded in this case, Mr Eadie makes a strong plea for attention to be given to the context of the legislation that underlies the material events and to the context in which the process that led to the Secretary of State’s directions operated. The legislative context involves to a very significant degree the “safeguarding” of children, the children in question being a particularly vulnerable group because of the risk of harm to which they are potentially exposed. The legislative context is, of course, a national one. However, he makes the point that the impetus for the reforms that led to that national legislative context came from events within Haringey itself. Given the serious past failings in relation to child protection within the Borough, and given the rationale for the appointment of a DCS as involving responsibility and accountability for the improvement of those services, he submits in effect that the need for fairness in the urgent situation confronting the Secretary of State should not be judged by reference to what might be termed the standard requirements of fairness demanded in a normal disciplinary process.

[376]This submission has a compelling aspect to it, though it is important not to be wholly seduced by it. In all these matters, it is a question of balancing the competing considerations, interests and rights. It is very difficult, if not impossible, to envisage any circumstances in which the right of an individual to be treated fairly would take precedence over, or should delay, an urgent decision concerning the interests of a large number of vulnerable children who may be exposed to the risk of significant injury or death, particularly if the decision is perceived to affect not just children in a particular locality, but nationwide. Although Mr Eadie did not contend for the approach of “shoot first, ask questions later” in relation to decisions of this nature, taken to its logical conclusion the submission could amount to that. Since that was not the argument, I do not have to address it in that way. However, if in this situation an individual is deprived of some of the ordinary notions of fairness in the process that leads to his or her removal from a particular position, it should not necessarily mean that the individual is, or should be, deprived of his or her reputation or his or her other contractual or statutory rights. It is always possible for the decision-maker to make it clear that the decision had to be taken in the wider public interest and that it did not necessarily reflect anything adverse about the individual’s competence or professionalism. Equally, the opportunity to redress the balance may arise in other ways, more often than not outside any litigious process. Finally, it is open to an individual affected in this way to seek a declaration from the court that the process was unfair even if, ultimately, such a declaration cannot “put the clock back”.

[377]In my judgment, it is not possible to draw many analogies between the process that was applied in this case and a normal disciplinary process where matters can usually be taken with less expedition. Dealing with the child protection services in Haringey was perceived by the Secretary of State to be a major and urgent concern, not merely from the point of view of child protection in Haringey itself, but also in a nationwide context given the overwhelming public concern arising from the outcome of ‘the Baby P case’. That judgment was pre-eminently a matter for the Secretary of State and is not, strictly speaking, for the court to evaluate. I would, however, merely observe that it would be difficult to see how anyone could argue to the contrary. Looking at the more local context of Haringey itself, there were, as I have observed previously, about 200 other children on the child protection register at the time and the SCR about Peter’s case, produced under the LSCB of which the Claimant was Chair, revealed some important issues that needed addressing in any event. The need to address the way the services in Haringey were organised was going to arise irrespective of any media campaign or public outcry after the verdicts in Peter’s case. That the intense public reaction may have hastened the process somewhat is, in one sense, neither here nor there: the issue had to be addressed and addressed quickly. If another death occurred whilst prolonged investigations took place, anyone who was responsible for prolonging the investigatory process would be blamed (or would blame themselves) for contributing to another tragedy. It follows that there was nothing irrational about a truncated investigation and, logically, nothing wrong about being less concerned about the principle of fairness to individuals than in other cases.

[378]If one stood back and asked the question ‘was this process invoked by the Secretary of State in this situation an appropriate one to embark upon in the circumstances?’ the answer must surely be ‘yes’. It was a process that was designed to look at the functioning of a department, or more accurately, at a system within Haringey that involved not merely the CYPS, but also the healthcare services and the police. It was not of itself designed to look at the roles of individuals. Unfortunately, it was conducted against the background of a significant degree of press coverage that was decidedly personalised, the Claimant being one person at the forefront of that coverage. This personalised approach continued into the press conference of 1 December 2008 and into the events of the next 6 or 7 weeks. That may have had the effect of skewing the perception of many people about what was involved at the time – and it may still have the effect of skewing people’s perceptions about what occurred and the responsibilities of those involved. However, be that as it may, standing back from the process envisaged, it cannot, in my judgment, be said to have been intrinsically unfair in its conception in relation to any individual concerned.

[379]The precise advice received by the Secretary of State on 12 November has not been revealed, but one issue that he plainly knew that he would have to address if he was to intervene under Section 497A of the Education Act 1996 was whether he was “satisfied” that Haringey was “failing in any respect to perform [its functions] to an adequate standard”. That has nothing specifically to do with an individual or group of individuals – though, of course, individuals are responsible for ensuring the performance of those functions. Had he been so satisfied on the basis of what he saw on 12 November, he could there and then have issued a direction of the type made on 1 December. It would have run the risk of a challenge either by the local authority or by any individuals concerned: since sadly deaths of and serious injuries to children on the child protection register do occur even in local authorities where there is a generally adequate system of child safeguarding, it would have been difficult to justify taking any step until there was additional material available to show that Haringey was not performing its child safeguarding functions to an adequate standard. However, it would, in theory at any rate, have been a course open to him. He did not do so and invited an inspection by those who, in the normal course of events, are required, if asked to do so by the Secretary of State, to carry out an inspection of children’s services. That will doubtless have been perceived by him as a “fair” approach to adopt, both to Haringey itself and, to the extent that fairness to individuals was perceived to be part of the consideration he had to give to the intended process, to those individuals too.

[380]There is, it has to be said, little evidence that fairness to individuals was considered actively at the outset or necessarily at any stage: the focus was on the child protection arrangements in Haringey. To the extent that consideration of fairness to individuals was taken into account, it was said in effect on the Secretary of State’s behalf that he assumed that the individuals concerned would have the opportunity to influence the Ofsted process and would thus have an opportunity to “put their case” to the inspection team. I have already drawn attention to what seems to have been a misunderstanding between the Secretary of State and Ofsted about the extent of “feedback”. That is unfortunate and has caused me some concern. However, “feedback” is one thing; having the opportunity to put a message over to the inspectors is another. Feedback might have corrected some of the misconceptions, as the Claimant sees them, in the report; but in terms of individual responsibility in the management structure for what did or did not happen in Haringey I am doubtful whether it would have made any impact. If that was going to come, it would come from the individual interviews. There is no doubt that the Leader of the Council, the Lead Member, the Chief Executive, the DCS, her deputy and others were all interviewed and each had the opportunity to put across his or her point of view: the evidence suggests that the discussions were held in an open, rather than accusatorial, fashion - which is what one would expect of a proper “inspection”. For reasons which I have mentioned and will mention again elsewhere, I do not think it could possibly be said that the circumstances for conveying a viewpoint were ideal: they were not. However, the opportunity existed. Because this case involves the Claimant, it has to be said that the opportunity existed for her albeit, given all the pressures to which she and those close to her were being exposed during that time, one in which it is difficult to believe it was easy to collect relevant thoughts and put them forward in a focused and persuasive way.

[381]There is a dispute between her and the Ofsted witnesses about the extent to which those opportunities were provided during the fieldwork week. I will be returning to this again in due course (see paragraphs 410-490 below).

[382]But the question, at the end of the day, was whether the Secretary of State was entitled to conclude that those who might be affected by any decision he took to issue the kind of direction he issued had contributed to the investigation that he was proposing to rely upon. It seems to me that the answer is plainly ‘yes’. If that is correct then, in the circumstances of the kind of decision he had to make, I do not think there was any further obligation upon him to receive any representations from the Claimant before issuing the directions he did.

[383]I accept the force of Mr Maurici’s point that Ofsted did not see its investigation and report as one which would lead to the dismissal or removal of anyone from their post. However, the issue is not what Ofsted perceived the purpose of its report to be, but the use to which it was actually put. Was it fair to use it for the purpose for which the Secretary of State used it? Given what he had to decide within what he was entitled to regard as an urgent timetable, I do not see how it could be said to be unfair to do so.

[384]As will, perhaps, be apparent from the foregoing discussion, striving to find a pigeon-hole for the appropriate concept of fairness in this case is, I think, a forlorn exercise. It seems to me that the true basis for what occurred in this case is that, if one left out of account any actual or perceived personal fault or failing on the Claimant’s behalf in how she carried out what must have been complex responsibilities at Haringey, she was the head of a vital department found to have fallen short of expected standards in a significant way. That falling below of expected standards could easily have been the direct responsibility of the person to whom the day-to-day conduct of the department was delegated or could simply have been a function of the difficulties faced by Haringey (and doubtless other local authorities) of recruiting and retaining sufficient well-qualified social workers to be able to respond to the needs of the children on its child protection register (indeed the very point Ms Hitchen made to Mr Hart during their discussion: see paragraph 238 above). It could also have been a function of the inadequacy of the other principal agencies (the healthcare services and/or the police) to engage with the expected standards: the Ofsted report criticised them too and arguably could have made more of the criticisms. If it was any of those factors and the Claimant had striven within the limits of the financial and human resources at her disposal to maintain and improve standards, then most fair-minded people would say it was “unfair” on a personal level that she should be removed from her position, certainly if she had not had a reasonable opportunity to put that point of view to those who were in a position to influence her future. However, if “fairness” in this context is judged by reference to someone having to “carry the can” for the failings of a system then, as head of that system, it would not on that analysis necessarily be “unfair” that she was replaced. It all depends upon the perception and meaning of the expression “accountability”. It is notable that the Secretary of State, in the press conference when he announced his decisions, said within a short while of commencing his statement that “all the people who work to keep children safe … must … be accountable for their decisions.”

[385]Traditionally, an elected politician who becomes a Minister is expected to resign if his or her department is found wanting over a significant matter even if it was not the personal responsibility for the Minister concerned. I say “traditionally” because it may be thought that the tradition has been less frequently observed in more recent times. In this case, of course, there was “political accountability” within Haringey because the Leader of the Council and the Lead Member, both elected politicians, resigned. That is generally what people would expect. Political accountability is one thing: accountability on the part of someone employed to do something is arguably another, with matters of professional reputation, livelihood and considerations of a contractual and financial nature also in play. If what happened in this case is going to be repeated in the future, the law will have to grapple with this concept of accountability in the rather more local and less familiar setting of that of an employee than hitherto. Indeed the issue may arise acutely in the Employment Tribunal proceedings that may take place in this case.

[386]As I have said, a substantial factor in the Claimant being replaced by the Secretary of State was because, as head of the department that was assessed to be inadequate, she was held “accountable”. To that extent, the normal conceptions of “fairness” to the individual do not really apply. There may need to be a debate, which one court case decided on its own facts cannot possibly resolve, about whether individual responsibility in this way for a collective failure is what is to be expected of someone who achieves the position of DCS or its equivalent and, of course, whether it justifies summary dismissal. Was this what was meant by the guidance on “accountability” to which I referred in paragraph 77 above? The answer to the question would be of interest to anyone thinking of taking on the role of DCS - and maybe to those currently in office. The prospect of summary dismissal with no compensation and a good deal of public opprobrium is hardly likely to be an inducement for someone thinking of taking the job or, perhaps, in some circumstances, continuing in it. It is to be noted that the Dismissal Appeal Panel at Haringey gave as one of its reasons for upholding the decision to dismiss the Claimant “that the Director of Children's Services was personally accountable for any failings identified in the Service by” the Ofsted report (my emphasis). I have not heard full argument about what "accountable" means in the legal context (rather than what it might convey in something said by a politician or a commentator on public events) and the view I express about it is necessarily tentative. However, whilst there can be no doubt that the word is generally understood simply to mean the same as "answerable" (in other words, a person who is "accountable" is the person who must answer questions about why something did or did not happen), it would be a very significant step to say that "accountability" means liability for summary dismissal without compensation. That seems to me, potentially at any rate, to open up some very large employment law issues leaving aside the obvious comment that few people would want to take on the role of DCS in those circumstances.

[387]At all events, my ultimate conclusion is that,(a) since what the Secretary of State was engaged in was not a true disciplinary process,

(b) the issue had a real local and national dimension that affected vulnerable children and

(c) since he was entitled to adjudge it to be urgent, the traditional safeguards concerning the rights of an individual to a fair hearing and/or a fair opportunity to put his or her case, whilst not removed totally, of necessity assumed a considerably lower profile than it might otherwise have done. For the reasons I have endeavoured to articulate, I do not consider that what was understood by the Secretary of State to have occurred during the Ofsted inspection rendered the process adopted unfair. That the whole process became subverted by the personalisation of the issues was unfortunate. It would have been better had it not. As I have already observed, it is, to my mind, very doubtful if the Claimant really did have a true opportunity to put her point of view persuasively to the inspectors because of the distractions caused by the media interest in what was going on at Haringey, particularly in relation to her, during the inspection week. Threats made to her and her family cannot have helped either. However, the Ofsted inspection team were there to investigate and report, not to formulate allegations and obtain a specific response to them.

[388]If that view is wrong and the process ought to be regarded as unfair to the Claimant, would any representations that she made to the Secretary of State have made any difference? The law is clear that if it would not have done so, the Claimant has lost nothing “of substance”. Unfairness does not exist in a vacuum.

[389]In Malloch v Aberdeen Corporation

[1971] 1 WLR 1578

,1595, Lord Wilberforce said of the appellant in that case:

“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 ….”

[390]Bingham LJ, in R v Chief Constable of Thames Valley Police, ex p Cotton, above, referred to what Lord Wilberforce had said in Malloch’s case and encapsulating the views of the other members of the Court of Appeal (Slade and Stocker LJJ) said, said this:

“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.”

[391]He summarised his views in the following way, an approach endorsed subsequently by the Court of Appeal in R v Broxtowe Borough Council ex parte Bradford

[2000] IRLR 329

(Lord Woolf MR, Waller and Chadwick LJJ):

“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.”

[392]In Regina (Smith) v North Eastern Derbyshire Primary Care Trust

[2006] 1 WLR 3315

, where the judge at first instance had proceeded on the basis that if representations had been made by the claimant it “would probably have made no difference”, the Court of Appeal (May and Keene LJJ) said:

“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,JudicialReviewHandbook, 4th ed (2004), para 4.5 and Lewis,JudicialRemediesinPublicLaw , 3rd ed (2004), para 11– 027.”

[393]There may be a difference between Mr Maurici and Mr Eadie about where the burden on this issue lies given the manner in which the authorities to which I have referred were expressed. For my part, I would see the differences of expression merely as a reflection of the way in which the court dealt with the arguments advanced in the particular case. At the end of the day, if the issue is raised, the court needs to ask the question whether representations would have made any difference. If the court is certain that they would have made no difference that is the end of the matter. Anything less than certainty means that there is a more than minimal prospect of the representations having made a difference and, accordingly, the threshold for the court’s intervention is crossed.

[394]Whatever test is applied, the court will always entertain the argument with caution. It is an unattractive position for any decision-maker to take to say that whatever representations had been received would have made no difference. Too ready an acceptance of the argument would lead to rule by those with closed and unresponsive minds. Delving too deeply into the argument may also lead into the forbidden territory of the merits of the particular decision.

[395]Bearing in mind, as I do, all those words of caution, I am reluctantly driven to the conclusion that anything the Claimant said in this case would not have made any difference to the Secretary of State’s decision. I reach this conclusion simply on the basis that he had before him a report which told him that Haringey’s children’s services department was “inadequate” and that there were systemic management failures within the current arrangements. A decision to replace the management against that background, he says through Ms Pugh, was inevitable, a decision made even more inevitable because of the nationwide concerns about child protection arrangements generally. I am, of course, alive to how easy it is simply to assert in a witness statement that a decision like this would have been the same irrespective of anything that might have been said by the person affected who had no direct opportunity to influence the decision taken. I am also alive to how unfair this would seem to the person affected. But I have to say that, given the terms of the Ofsted report, given that this was Haringey (where the impetus for all the national child protection reforms started) and given the national context of the concerns about child protection arising from what was known then as 'the Baby P case', I can see no alternative but to conclude that nothing the Claimant could have said at that time (which would have been about the conclusions of the Ofsted report and about any personal responsibility she perceived she might have about any of those aspects) would have made any difference. I agree with Mr Maurici that, given the opportunity, she could have said a good deal about the report: what she said in the Haringey hearings and what she has said in her detailed response to the report prepared for these proceedings evidences that proposition. Indeed given some of the material that has emerged in the late disclosure by Ofsted about how the report achieved its final form, she might have had quite a bit more to say. However, I am quite sure that the wider picture, as it presented itself to the Secretary of State, would have resulted in the same outcome irrespective of what she could have said.

[396]I should make it clear that I was much pressed by Mr Eadie, and indeed Mr Ward and Ms Simler, with submissions supporting this general argument, but based upon material that was not before the Secretary of State, either because, although in existence, it was not drawn to his attention by Ofsted or his Department at the time or because it was not yet in existence. This does not seem to me to be a legitimate approach to this kind of issue. If the invitation to approach matters in this way were accepted, it would be tantamount to the court being asked to substitute its own views on the merits of the case on the basis of material that was not available to the decision-maker. That cannot be right. I should say that the same point has to be made in relation to the Claimant's argument (set out in her detailed commentary on the Ofsted report prepared for these proceedings) that a fair number of the criticisms made of the arrangements within Haringey and in respect of the SCR in Peter’s case were criticisms made by Lord Laming in the report published in March 2009 and indeed (in relation to the SCR) in Ofsted’s own evaluation of other SCRs throughout the country published at or about the same time as the Secretary of State’s directions. If she is correct about that it is, of course, possible to see why she might feel aggrieved that the SCR which she oversaw should have been used as part of the reason for her dismissal. However, I must base my assessment purely on the material that was available to the Secretary of the State on 1 December and on what could have been said by the Claimant at or about that time.

[397]At all events, for the additional reason that whatever could have been said would have made no difference, I am unable to conclude that the decision was unfair in the sense that the law requires unless I can go on to find grounds for impugning the Ofsted report itself.

[398]I cannot leave this aspect of the case without repeating and amplifying one comment I made earlier. It appears that no arrangements had been made to communicate the effect of the Secretary of State’s decision to the Claimant, or even the gist of the final version of the Ofsted report, before the directions were issued at 12.30 on 1 December or before the Secretary of State announced the position at a televised news conference that afternoon. This means that the first she knew that she had been removed from her office was when she saw the announcement to that effect on the television. She also heard the Secretary of State say that the inspectors had said that she had displayed “insufficient management oversight” in relation to her deputy and that she was “not fit for office”. I have concluded that, subject to the question of whether the Ofsted report itself was flawed, the decision to make the directions the Secretary of State made was not itself made as a result of an unfair process according to law. Whether the way matters were announced was fair must be a matter for others to judge, but I cannot avoid the comment that a Government Minister might feel less than pleased if the Prime Minister was to remove him or her from office by announcing their unfitness for office directly to the nation before telling the Minister concerned. One question the Secretary of State was asked at the press conference was why the Claimant had not resigned “given the damning findings of Ofsted”. He had to draw attention to the fact that she had not yet seen the report. I do not think that any fair-minded person could think that this was a satisfactory state of affairs. The petition

[399]I must now turn briefly to the suggestion that the Secretary of State’s decision was flawed by taking into account the petition organised by The Sun. I have already quoted the Secretary of State’s position in relation to the suggestion, as articulated by Ms Pugh in paragraph 79 of her witness statement (see paragraph 310 above). It constitutes a denial that his decision was a response to the petition or to calls for action from that particular newspaper.

[400]The legal foundation for Mr Maurici’s argument is the case of R v Secretary of State for the Home Department, ex parte Venables

[1998] AC 407

. That case arose out of the terrible murder of James Bulger by Robert Thompson and Jon Venables who were aged 10½ at the time of the murder. It was another case that gave rise to very strong feelings and emotions – and indeed still does. Thompson and Venables were sentenced to be detained during Her Majesty's pleasure pursuant to section 53(1) of the Children and Young Persons Act 1933. After that sentence was passed, the trial judge, in a report to the Secretary of State, stated that in his view the minimum period of detention necessary to satisfy the requirements of retribution and deterrence was 8 years having regard to their youth at the time of the offences. The Lord Chief Justice recommended a tariff of 10 years. The Home Secretary, in the exercise of his powers that he then possessed under section 35 of the Criminal Justice Act 1991, informed Thomson and Venables that he had fixed a tariff of 15 years as appropriate to satisfy the requirements of retribution and deterrence. It was plain from his decision letters that the Home Secretary, when fixing the penal element in the sentences at 15 years, had paid some regard to a large number of petitions and letters inviting him to impose a whole life term one of which, incidentally, was coordinated by The Sun.

[401]A majority of the House of Lords (Lords Goff of Chieveley, Steyn and Hope of Craighead) held that he was wrong to do so because he was carrying out what was effectively a judicial task and he should not be influenced by such matters. Lord Steyn put it in this way:

“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….”

Lord Hope of Craighead put the matter in this way:

“… 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.”

[403]Mr Maurici relies upon the Secretary of State’s answer to the question from Mr George Pascoe-Watson at the press conference on 1 December to the effect that he “recognised the force of” the petition (see paragraph 306 above) to support the inference that the Secretary of State was influenced by the petition. However, it is right to say that the Secretary of State went on to refer to what many people “right across the country” had felt about the case having “seen in the newspapers the reality of this tragedy.” I do not interpret his answer, taken as a whole, to support the proposition that it was because of The Sun’s petition that he took the action that he did. There can be no doubt from the press material put before me that virtually every newspaper in the country was carrying the story and its implications. Doubtless it was extensively reported and the subject of comment on television, radio and also the Internet. Ms Pugh refers to e-mails and letters received by No 10 Downing Street and the Department and the way the matter was raised in Parliament on a good number of occasions, including calls for a public inquiry. She refers also to a “lynch mob” attitude towards social workers in various places across the country, a problem that is highlighted in some of the press reports in the papers before me.

[404]Ms Pugh explains the Secretary of State’s decision to write an article in The Sun on 27 November by saying that it was designed to “calm the public outcry” in a newspaper that “had been particularly active in voicing public concern”. Taking such a step is pre-eminently a matter for political judgment upon which I make no comment.

[405]However, taking such a step and being photographed with someone conveying a petition demanding that certain actions be taken shortly before considering what action to take does run the risk of a court being forced to draw the inference that a material consideration in taking the decision a few days later was the petition and the influence of the particular newspaper - or that it reflected a pre-determination to act in a particular way. Whilst the Venables case (see paragraph 400) was, I fully accept, different from the present case, I am not wholly convinced that the distinction sought to be made by Mr Eadie between a Secretary of State being called upon to act judicially and one who is called upon to act fairly in making an administrative decision is that significant in this context. The Venables case illustrates the danger that a decision-maker who is required by law to act fairly faces of being seen to be too close to a populist cause, no matter how well-intentioned the cause may be, and of crossing the threshold into the forbidden territory of the irrelevant consideration. However, just as I consider it too simplistic to say that the Secretary of State embarked on the process he did on 12 November because of “party political” reasons (see paragraph 141 above), I think it also far too simplistic to say that he took the decision that he did on 1 December because of being presented with a petition from a national newspaper a few days earlier. No media outlet could claim a monopoly of coverage, influence or wisdom on the matters the Secretary of State had to consider at the time and against that background, and the wider background referred to by Ms Pugh, it is quite impossible to draw the inference that Mr Maurici invites me to draw.

[406]As I shall indicate later, I consider the Secretary of State, who was anxious to state clearly that the Claimant’s employment status was a matter for Haringey (something emphasised also by his officials), would have been better advised not to have been persuaded to express a view at the press conference about whether she should receive compensation from her employers. That could be seen as seeking to put pressure upon the authority which, as a public body, was obliged to consider properly, fairly and with due regard to its own legal powers what it should do in what was almost certainly a complex legal position: cf.Gibb v Maidstone and Tunbridge Wells NHS Trust

[2009] EWHC 862 (QB)

. He should, in my view, have remained entirely detached from the employment consequences for the individuals affected by his direction and have emphasised that that was the case. However, he was not alone amongst senior national and local politicians in making comments of this nature and, in any event, the comments have nothing to do with the merits of the decision he had made by then or whether the procedure he adopted prior to making it was fair or otherwise.

[407]Ms Pugh’s statement to which I have drawn attention, sets out the reasons for the Secretary of State’s decision and in the ordinary way I would be obliged to accept it. As I have said previously, I have, however, taken a somewhat broader view of the evidence for the reasons I have given (Section 4) and, even on that broader and more liberal approach, I see no reason not to accept it. It affords a rational basis for the decision taken and does not indicate any grounds for saying that an improper consideration (such as responding directly to a petition) was taken into account.

[408]Accordingly, I am unable to accept that the Secretary of State’s decision can be challenged successfully on this ground.

[409]I have dealt with the Secretary of State’s decision first because, though based on the Ofsted report, it seemed the logical place to start. However, if the Ofsted report was itself so fatally flawed that the Secretary of State should not have relied upon it, then, Mr Maurici argues, the Secretary of State’s decision should be set aside or declared unfair for that reason. It has not been argued that the Secretary of State’s decision could stand if the Ofsted report was flawed, so I proceed on the basis that if the report should be the subject of relief so too should be the Secretary of State’s decision.

(b) Ofsted’s inspection and report

[410]A fair amount of the legal argument concerning the Ofsted report has been foreshadowed in the description of the events surrounding the request for the report, the arrangements made for it, the carrying out of the inspection and the preparation of the report itself. I will endeavour not simply to repeat it.

[411]Mr Ward does not try to contend that this report was carried out in accordance with the Published Arrangements. I will not repeat all the expressions used concerning its “unique” nature. It was unprecedented in the experience of those who took part. It remains to be seen whether any such report is commissioned in the future.

[412]I have already indicated that this could not possibly be characterised as a true or full JAR. The Secretary of State was asking more than could be achieved within the Published Arrangements if a full JAR was being sought.

[413]Whilst that means that the report should not really be called a JAR at all, it does not of itself, in my judgment, invalidate the exercise that Ofsted carried out. Mr Maurici has in effect argued that Ofsted exceeded its statutory remit by agreeing to fulfil a request from the Secretary of State, purportedly within section 20, when it could not fulfil it within the parameters set by section 20. However, this does seem to me to be the most technical of arguments and ignores the true realities of the moment. As I have said elsewhere, it would theoretically have been open to the Secretary of State to form a view about Haringey’s capacity to carry out its obligations in relation to the safeguarding of children on the basis of the material he had on 12 November. He chose not to do so, but invited an inspection on safeguarding in Haringey from those normally charged with the responsibility for inspecting such an issue. I do not think that there can be any rational or sustained criticism of Ofsted for accepting the invitation even if it meant compromising its usual approach to such a task.

[414]Unless there is something in the background that has not been revealed in these proceedings, I do not think that there can be any doubt that, in the execution of the fieldwork part of the process, the Ofsted team was not setting out to “target” the Claimant personally in its analysis of what it saw. Indeed I am not sure that, on a true analysis, this is what the Claimant says. Her case, articulated through Mr Maurici’s written submissions in particular, is that the way in which the findings of the inspection were written up in the final form of the report reflected the implementation of an agenda designed to put her in the worst possible light. I will return to that suggestion (to the extent that it is relevant to the matters before me) later, but it would have been contrary to the way in which Ofsted inspections were carried out for any inspection to focus on the role that specific individuals played.

[415]Mr Ward has drawn attention to the terms of section 20(3) (see paragraph 70 above) and submits that the purpose of a JAR is an inquiry into the provision of children’s services by a range of different agencies: it is not an inquiry to the conduct of a specific individual or indeed of a single agency. This general approach is confirmed by what Ms Brown said in her witness statement when she asserted as follows: ”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.”

[416]Mr Pullen also contributed to this by saying:

“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.”

[417]For my part, on the evidence available, I have no difficulty in accepting that that was indeed the way in which the inspection was approached. There are, perhaps, two relevant matters that need to be factored into evaluating the task confronting the inspectors: 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.

[418]However, the Claimant herself has said generously that the team at least appeared very professional in what they did even though, having had an opportunity subsequently to consider the report after it was revealed to her (and, of course, after the further disclosure), she has very considerable reservations about the conclusions to which they came and whether those conclusions, or at least some of them, were truly justified by what they saw.

[419]The only indication that the criticism may have been becoming focused on the Claimant personally before the investigation was complete and the report was prepared is to be derived from the impression gained by Mr Bell by 19 November that “the weight of negative opinion [may] be so great that [the Claimant] will be compelled to resign or the Council will force her go” (see paragraph 235 above) and that the following day he was asking Ofsted to ensure that the report should be “clear in its judgments and attribution of responsibility” and that there should be “definitive evidence on which the Minister can act” (see paragraph 244 above). The evidence that he used this expression, or something like it, was revealed in Ms Pugh's witness statement on behalf of the Secretary of State of 24 July 2009 and in the original Ofsted disclosure. It follows that it is not something that was revealed for the first time in the additional disclosure: indeed it was mentioned in Mr Maurici's initial Skeleton Argument dated 18 September 2009.

[420]That could, on one interpretation, be an indication that the Claimant was, at least by then, seen as a target in relation to the ultimate conclusion in the report, albeit that she did not start as one. It could also simply be a reflection of the view that, irrespective of whether she was personally at fault, the Claimant would be held “accountable” for the failings of the Department of which she was the head. The expression "attribution of responsibility" is one that does not sit easily with the normal approach of Ofsted to inspections and its meaning has not really been elucidated during the proceedings.

[421]However, whatever gloss may be put upon the contents of these internal e-mails and notes, the fact of the matter is that save in respect of her role as Chair of the LSCB, there was no specific reference to the Claimant in the Ofsted report and its conclusion related to the social care department as a whole and did not refer specifically to her.

[422]Notwithstanding that observation, a potentially important issue in the case (depending on the legal analysis of the extent of Ofsted's obligation to act "fairly") is the extent to which the gist of its concerns were ventilated with the Claimant (or others within Haringey) during the course of the inspection. I must turn to that general issue. The gist of Ofsted's concerns

[423]On the assumption which I make for this purpose that Ofsted owed an obligation to the Claimant to raise with her the gist of the concerns that arose during the inspection, the issue I have to determine is the extent to which they fulfilled that obligation. I have already referred to the note produced by Mr Ward during the oral hearing entitled "The Inspection's central concerns". It is a convenient starting-point for the analysis I must endeavour to undertake. It follows the sequence of findings set out in the 'Summary Judgement' to which I referred in paragraph 288 above. I will, however, for convenience repeat each finding and refer to the various submissions made about each one in the context with which I am concerned. It will be recalled that all but one or two of these matters were, if raised at all, said by Mr Ward to have been raised at the duty room feedback meeting (see paragraph 218). Finding 1

[424]The first 'Main finding' related to strategic leadership and management oversight of safeguarding in Haringey. It read as follows:

"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.

[425]Once the further disclosure had taken place (including drafts of the report before it achieved its final status), Mr Maurici submitted that the finding was not included in the main findings, or elsewhere, in the first draft and that it emerged in embryonic form only on Wednesday, 26 November, following, he suggests, the intervention of Ms Gilbert the day before. On 25 November Ms Brown had sent the first draft to Mr Pullen, Mr Shippam and others at 09.35 that morning and various suggestions and amendments were made during the morning. At 12.12 a revised version was sent to Ms Gilbert and Ms Rosen as an attachment to an e-mail from Mr Shippam. He described it as "very much work in progress" but was enough to "give the flavour and ... enable you to give steers as necessary." It is right to say that the draft sent did not include the words that appeared in the final version. Mr Hart was charged with the task of producing something in relation to leadership and management and the words "Leadership and management of the children’s service are inadequate" appeared in the next draft on the morning of 26 November as did, in a separate sentence, the words “There has been a failure to use the outcomes from qualitative audit activity to critically self evaluate and inform operational and strategic management.”

[426]Later during the day of 26 November a new first finding was drafted in these terms:

"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."

[427]Others may have contributed to the drafting, but the very final draft version that went to the Secretary of State contained this paragraph:

"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."

[428]As I understand it, when the Leader of the Council saw the final draft version on the morning of 1 December he objected to the reference to the Victoria Climbié Inquiry and that part was redrafted into a separate paragraph placing responsibility for the "failure to ensure full compliance" with officers and not Members (see paragraph 298 above and paragraph 438 below).

[429]I have set out this sequence of events (which is not as detailed as the analysis provided by Mr Maurici) in order to put into context the submission he makes about it. I make it clear that I am not forming any view on whether this process constituted a deliberate decision to 'beef up' the report in order to make the Claimant's position (or Haringey's position) worse. What Mr Maurici submits is that if there were the various uncertainties within the inspection team about how to phrase this important part of the report, there can be little confidence that the gist of the concerns apparently felt were ventilated with the Claimant. He also says that Ofsted’s case that the gist of its concerns (i.e. the “main findings” as set out in the final report) were communicated to her cannot sit with their absence from the first draft report and since there is nothing in that first draft about failures in strategic leadership, it is unlikely that anything about it was raised with her.

[430]Mr Ward, on the other hand, drew attention to the fact that the final version does reflect in part the fifth Main Finding in the first draft which was in these terms:

"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."

[431]He also argues that this Main Finding reflects the issues raised in the other findings that did appear in the first draft, namely, inadequacy of assessments, lack of communication between agencies, inadequate record keeping, lack of oversight by management, excessive reliance upon performance data, quality of performance management arrangements, high turnover of staff and lack of continuity of care and lack of effective challenge by the LSCB. He submits that a finding of "insufficient strategic leadership and management oversight" follows from and is a reflection of those concerns.

[432]It does seem to me that the substance of Mr Ward’s argument in this respect is broadly correct. I say nothing about whether the overall judgment reflected in this particular finding was justified or not. However, it only has to be read as it stands to appreciate that it is a judgment and one that reflects on all agencies within Haringey with responsibility for child protection. It represents a drawing together of various strands of practice (or substandard practice) across the Borough. It is not of itself directed at the Claimant personally – it is a criticism directed at all those who have a role in “strategic leadership” and “management oversight” matters. Assuming that the criticism is justified, then in relation to “strategic leadership” matters the Claimant would have to accept her share of it as DCS, particularly given her role as Chair of the LSCB, which has a wider remit than merely the child protection arrangements of the Council.

[433]If fairness demanded that the inspectors should have said to her that they were minded to criticise the lack of strategic leadership, that she had some responsibility and that her comment about it was specifically requested, then there can be no doubt that an adverse conclusion would have been unfairly arrived at as far as she was concerned. There is no evidence or suggestion that anything like this was ever said to her. There is no evidence that the words “strategic leadership” were ever used by the inspectors in her presence. However, as I have said, this was a broad generalisation based upon an overview of a number of specific criticisms. It is difficult to believe that the Claimant could have said anything which would have changed the general criticism even if she had been given an opportunity to do so.

[434]So far as “lack of management oversight” is concerned, I do not think it can be right to say that the Claimant had no opportunity to say something about this. The criticism, as I understand it, went to all levels of management and reflected issues that were raised at the duty room feedback meeting. I have already concluded that the Claimant and Ms Hitchen must have appreciated that there were levels of concern on the part of the inspectors arising from that meeting and that those issues reflected on management oversight, something that Ms Doe had identified (see paragraph 102).

[435]As appears from paragraph 224 above, the evidence of Mr Hart is that an invitation was extended to respond to these concerns which was not taken up. I have observed already that there is not very much contemporaneous evidence about this, but there can be little doubt that some discussion about the relevant cases took place at the duty room feedback meeting and it would be surprising if Ms Hitchen, whose primary responsibility this would have been, had not been invited to consider the position further. As it was, she was interviewed the following day (when she became very upset) and was probably in no fit state to take matters much further in the next 24-48 hours. I suspect that that is why no response was ever given.

[436]Whilst the Claimant’s personal responsibility for these matters on a day to day basis was probably (and legitimately) less than that of Ms Hitchen, as the person in overall charge she would have been expected to have (and, of course, did have) an interest in how management oversight below her was accomplished. Within the limits of this very unusual and significantly truncated inspection process, it is impossible to say that she was not given notice of the gist of the inspectors concerns on this issue. Finding 2

[437]The foregoing discussion itself reveals how the second main finding came to be as it was (see paragraph 428 above). The second main finding as it appeared in the final version was in these terms:

"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."

[438]I have already commented on the unsatisfactory way in which this finding came to made in the form in which it ultimately appeared (see paragraph 298). Mr Maurici has suggested that it was entirely absent as a finding in the first draft and represented a "new addition". Mr Ward is undoubtedly justified in saying that this finding is reflected in the body of the first draft of the report where recommendations from the Victoria Climbié inquiry are referred to in six particular paragraphs. However, the way in which it came into the first draft needs to be noted. Ms Brown e-mailed Mr Pullen and Ms Anna Lis (the Deputy Director for Education) at 09.13 on 25 November to say that the first draft would be with them "imminently" and she alerted them to the fact that she had "included some Climbié recommendations at the end of certain [paragraphs]" which had been highlighted in blue font, but indicated that she would welcome "your advice about whether we retain these in the text". It was sent out to them and to the whole team at 09.35. In due course, comments were received from the team. It appears that Mr Hart and Ms O'Brien were concerned about the inclusion of these references on the basis that "many of the recommendations [of the Climbié inquiry] were not agreed by the [government] and [are] not therefore in guidance and statute." It is possible that that is why Ms Brown was hesitant about referring to them. As Mr Hart and Ms O'Brien put it, "we are not sure we should rely on [the] Climbié inquiry" for the reason I have set out. It appears that these words of concern were acted on, at least partially at any rate. When Ms Brown sent the draft to Ms Gilbert on 27 November 2008 she said this:

" ... in this version, we have removed the references to Climbié throughout the main body of the report, but it remains in the main findings. We are happy to delete that reference, also, or reinstate the other references, depending on your advice please."

Apart from the final version recording that "police training provision is compliant with the Victoria Climbié recommendations" and to the need for written feedback to those making referrals to social care services, no other reference was made to those recommendations in the body of the report.

[439]Again, let me emphasise that my task is not to decide whether any of the criticisms based on an alleged failure to implement recommendations from the Victoria Climbié inquiry are justified or not and my reference to the way this matter was considered within Ofsted is not part of a investigation into whether the report was unfairly strengthened in the process. The issue is whether an opportunity to address the concerns was presented during the inspection. I put it more broadly than simply questioning whether the Claimant personally had such an opportunity. Some of the issues would, I would have thought, been of the kind that Ms Hitchen, who was in day-to-day control of child protection matters, would (or should) have been able to address if raised with her. Since Mr Ward has been anxious to say that this was an inspection into a department and not the roles of individuals, it would have been open to him to say that, whilst the Claimant did not have the matter raised with her, it was raised with Ms Hitchen. He has not done so. The highest it is put on Ofsted's behalf in relation to discussions with the Claimant is by Ms Brown who draws attention to Recommendation 53 of the Victoria Climbié inquiry which was in these terms:

"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.

[440]Acknowledging, as I do, the limitations I face by not having the advantage of hearing oral evidence from the people involved and not necessarily having written evidence from everyone who could speak to this matter, I do not consider the balance of the evidence before enables me to conclude that the "concern" reflected in the final report about any failure to implement the recommendations of the Victoria Climbié inquiry was communicated sufficiently to anyone within Haringey during the inspection. I suspect that the hesitancy of Ms Brown (fortified by the views of Mr Hart and Ms O'Brien) about the extent to which reference should be made to the inquiry recommendations is the reason why it was not at the forefront of any discussions during the fieldwork part of the exercise. At all events, for whatever reason, I do not think that this aspect of the criticism made on the final report was properly communicated to those within Haringey who could have addressed it.

[441]Having reached that conclusion, it does not, in my view, make a material difference to the outcome of the overall debate on the overall issue with which I am concerned, but it is right that I should indicate where my appraisal of the evidence has led me. Finding 3

[442]Turning to the third 'Main finding', notwithstanding its importance I can take it quite shortly. The finding was in these terms:

"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."

[443]Whilst I am, of course, not concerned with the merits of the finding, I have already indicated (at paragraph 69) why the Claimant feels aggrieved about it irrespective of any issue about whether she had the opportunity to comment on it during the inspection.

[444]Mr Ward does not really dispute that the emphasis in the final version was different from the emphasis in the first draft. That was in these terms:

"While the local children safeguarding children board (LSCB) provides an adequate oversight of broader safeguarding issues, it fails to provide sufficient independent challenge."

[445]That formulation reflects a positive initial message followed by either a negative message or a reservation about the initial message. The final version was entirely negative and, although Mr Ward suggested that there were some positive things said about the LSCB in the final report (which there were to a degree), the message concerning the chairing of the LSCB was all one way. Paragraph 37 of the main body of the report read as follows:

"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."

[446]Whether that entirely negative message in the final version was justified or fair is not my concern in these proceedings. It is clear from the further disclosure that at least two members of the team (Mr Hart and Ms Ryan) had reservations about what was proposed by way of comment on the issue of chairing the LSCB. However, what is clear in this particular instance (which was not clear in relation to the second 'Main finding') is that this issue was discussed with the Claimant, even if only relatively briefly. The notes indicate that at her first interview the Claimant was asked if consideration had been given to the appointment of an independent chair when the answer appears to have been that this might have happened but for Baby P's death when she thought it right to take the lead. At all events, it is clear that the inspection team did look into the workings of the LSCB in some detail, not merely in the conversation with the Claimant, but with others including Dr O'Donovan. Since the Claimant will have known from at least Prime Minister's Question Time on 11 November that her position as Chair of the LSCB was questioned, it is difficult to believe that she was not ready (to the extent that the circumstances of the inspection permitted) to deal with it. Finding 4

[447]The fourth 'Main Finding' in the final Report relates to lack of communication between local agencies and was in these terms:

"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.

[448]The difficulty, as I see it, from the Claimant's point of view is that even if Mr Maurici was correct, this cannot, in my view, be seen as a comment directed at her. It is a statement of fact from the perspective of the inspectors. It is a criticism of all agencies. If it had been the only matter relied upon by the Secretary of State in removing her from her position, the Claimant might well have had a legitimate grievance. However, there is some evidence from her own notes (of the duty room feedback meeting) and the RoE that the inspectors had discussed with her the role that other agencies played, or should play, in child safeguarding. Her own notes of a meeting with Ms Brown on 19 November contain the following two entries:

"one of the things we can see from the files is a lack of multi-agency" and "not assessing together but in parallel"

. To that extent the concern was raised with her during the inspection. Finding 5

[449]This finding relates to the adequacy of assessments of children and young persons. In its final version it was as follows:

"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."

[450]For anyone truly concerned about protecting vulnerable children, this is surely the most telling finding. It may be the finding that made the greatest impression on the Secretary of State and his advisers when the draft report was made available on 30 November. Indeed some may think, at first sight, that it should have been made the first of Ofsted's findings. However, closer analysis shows that the word "assessment" refers to the relevant paperwork (or electronic equivalent) rather than the mental process that a caseworker goes through in deciding whether a child is at immediate risk. It is difficult to believe, for example, that any social worker who decided that a child was at immediate risk of harm would go home at night and do nothing about it even if they had not completed the relevant paperwork or its equivalent. However, because so many individuals may be involved in an individual child's welfare (both within an agency and across agencies) the records are important for continuity purposes and for helping to identify children who may become at risk or more seriously at risk.

[451]Mr Ward identified the basis for this in the document entitled "The Inspection's central concerns" in the following respects:(a) many files indicated that assessments had been completed when, in fact, the corresponding assessment form was blank;

(b) assessments remained outstanding many months after they should have been completed;

(c) where assessments had been instigated, they were often of poor quality, lacking rigorous (or sometimes any) analysis and a failure to take into account historical concerns and/or evidence from other agencies.

[452]The Claimant's notes taken at the duty room feedback meeting record “Core assessment completed but not complete” and at the case-tracking feedback meeting she noted the following: “Assessments – variable quality”, “Cases said to be complete but some aren’t” and “Some work not of good quality – lack of analysis…”.

[453]Those observations related to the written assessments undertaken within the Haringey Children's Services Department. It is clear, however, that criticisms of the assessments carried out by the health care services and by the police were made by the inspectors who viewed them during the inspection. That is clear from the final version and all other versions.

[454]In the first draft of the report the equivalent paragraph read as follows:

"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."

[455]In the body of the first draft the following appears:

"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."

[456]Focusing on the final version by comparison with the first version, Mr Maurici contends that the conclusion in the final version had been significantly strengthened by the inclusion of the suggestion that assessments “too often ... fail to identify those who are at immediate risk of harm” as opposed to “not always" focusing on "the needs of the child". This is a serious allegation, he contends, which, if true, was absent from the main findings in the first draft and which was inconsistent with Mr Hart's view that, notwithstanding what was discussed during the duty room feedback meeting, no cases of children in immediate danger had been identified. Mr Maurici's argument, for this purpose, is that if concerns as to children in "immediate danger" were not flagged up in the first draft it cannot have been a "main concern" and, accordingly, would not have been reflected in discussions with the Claimant - which, of course, is her case.

[457]I am not persuaded as a general proposition that merely because something was not in the first draft, yet found itself in the final version, means either that it was not a concern or that it may not have featured in discussions during the inspection: anyone with experience of drafting a document where collective views are required will know that the first step is often simply to "get something down on paper" around and upon the basis of which subsequent discussions and suggested drafting alterations are made. Nonetheless, I do not think that it is an argument than can be ignored completely in this context. An examination of the final report demonstrates that the words "immediate risk of harm" appear only once and that is in the finding set out in paragraph 449 above. In the paragraphs in the body of the report dealing with 'Quality of recording, assessment and child protection planning' (paragraphs 16-24), which presumably reflects the evidence-base for the findings in the 'Summary judgement', those words do not appear. I should set them out: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.

[458]Whilst these paragraphs doubtless must be read together (and it will be apparent that there are concerns in this overall regard across all agencies), just as the overall report must be read as a whole, paragraph 21 probably comes the closest to supporting the finding under consideration and is plainly a development of the paragraph in the first draft quoted in paragraph 454 above.

[459]Whether the finding under consideration was or was not justified is not a matter for me (other, perhaps, than making the observation that the distinction between children at risk of harm and at immediate risk of harm may presumably be a fine one in many circumstances), but it does seem clear that the evidence-base upon which paragraph 21 was founded was discussed with those at Haringey with an interest in it, including the Claimant. I cannot see that the inspectors could have done much more in the circumstances and, accordingly, the gist of their (developing) concerns was communicated. Finding 6

[460]This reads as follows:

"The quality of front line practice across all agencies is inconsistent and not effectively monitored by line managers."

[461]This again is directed to all agencies although it is the material that is relevant to Haringey that is important for present purposes. In one sense it appears that this is at least in part a restatement in slightly different language of matters already covered. The evidence-base for it certainly appears to be largely that reflected in paragraphs 16-24 of the main body of the report quoted in paragraph 457 above.

[462]The Claimant's notes taken at the duty room feedback meeting do reveal issues that were raised which could be referable to this finding. For example, certain specific cases are mentioned in the RoE which raise questions about the practice adopted by social workers who are, for this purpose, at the 'front line'. There can be no doubt there was a discussion about this and the Claimant does not dispute it. She has notes which include the following expressions:

“Not finding records on the system – lack of managerial oversight” and “[Not] all relevant children opened on the system”

. One can, of course, add into the picture here the evidence concerning the "assessments": see Finding 5.

[463]It is not in dispute that the substance of this finding was in the first draft as follows:

"Social care, health and police service files on vulnerable children do not demonstrate that managers have good oversight of the process of the case."

[464]It does seem clear that Haringey (which, for this purpose, includes the Claimant) was told during the inspection of the concerns which, in due course, led to this finding. Finding 7

[465]This reads as follows:

"Child protection plans are generally poor."

[466]It was in the first draft in essentially the same terms and it is in truth not a great deal more than a reflection of the kind of issues raised under Findings 5 and 6.

[467]I have already concluded that the gist of the concerns relating to those matters was communicated to Haringey (including the Claimant) and there is little to add to that conclusion. Finding 8

[468]This was in these terms:

"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."

[469]In the first draft the following appeared:

"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"

[470]This again appears to be reflected in certain paragraphs between paragraphs 16-24 of the main body of the report quoted in paragraph 457 above and is a managerial criticism derived from those matters and Finding 4.

[471]For the reasons I have endeavoured to set out in relation to those earlier findings, I cannot see how it could be said that the gist of the concern was not raised during the inspection. It is possible that the wording of the finding was somewhat stronger than might have been anticipated, but that does not lead inevitably to the conclusion that gist of the concern was not raised. Finding 9

[472]This reads as follows:

"The standard of record keeping on case files across all agencies is inconsistent and often poor."

[473]Its predecessor in the first draft was:

"The standard of record keeping across agencies is inconsistent and sometimes poor."

[474]Mr Maurici says, perhaps with some justification, that the introduction of the words "often poor" in replace of "sometimes poor" reflects a strengthening of the criticism. However, for the reasons given in relation to previous findings, I am unable to accept that this leads to the conclusion that the gist of the concern was not raised during the inspection. The Claimant's own notes reveal that record keeping was considered by the inspectors to be variable. Finding 10

[475]This was in the following terms:

"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."

[476]Its forerunner in the first draft was as follows:

"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."

[477]No particular point is made about this issue. It is accepted on the Claimant's behalf that the issue was raised in general terms - indeed the RoE and her own notes confirm this. Conclusion

[478]So where does this analysis lead on the issue I have to decide? Without, I trust, trespassing into an assessment of the merits, it does appear (at least without the benefit of hearing evidence from those with experience in the field) that there is a fair degree of overlap between a number of the findings. A number appear to be based on essentially the same evidence base and each appears to reflect concerns as to practice at different levels within the overall safeguarding structure. With the exception of Finding 2 (relating specifically to whether the Victoria Climbié inquiry recommendations had been implemented), I have concluded that the gist of Ofsted’s concerns on the other matters were raised with the Claimant, or at least were raised with Haringey personnel (largely, in the form of Ms Hitchen), in a way that enabled comment to be made. If one leaves out of account for this purpose the intense personal pressures that the Claimant was (and indeed others in Haringey were) under during the inspection, then it has to be said that as someone who was DCS during an earlier Ofsted inspection and who was once a former Ofsted inspector (albeit in educational matters), she would have been better placed than most to pick up the signs of matters of concern and, if there was an answer to them, to give that answer clearly and persuasively. That combination of circumstances seems to me, at least objectively speaking, to validate the inspection process from Ofsted’s point of view to the extent that there was an obligation to communicate the gist of the developing concerns. Ofsted was engaged to look into the workings of a department of which the Claimant was head and to report on what they found. The Claimant was, within the limits of the very truncated process, kept abreast of what was being revealed during the inspection. For my part, I cannot see what else, realistically, could have been done.

[479]However, I make it quite plain that I do not think that this kind of investigation can be equated with the kind of process that the law envisages when the termination of someone’s contract of employment is being contemplated on disciplinary grounds. I will be returning to that issue when considering Haringey’s position. Was there an obligation of fairness to the Claimant on the part of Ofsted?

[480]I have approached the evaluation of the evidence about what was or was not communicated to the Claimant on the basis that there was an obligation to tell her of the gist of the concerns that drove the main findings in the report. That was, as I understood the argument, the most that Mr Ward suggested the obligation of fairness required in the circumstances. Since feedback in the sense normally required when a JAR is prepared was not contemplated by Ofsted, he could certainly not rely upon the feedback element of the full JAR process to show that any obligation of fairness was discharged. Equally, since Ofsted’s whole approach is predicated on the basis that what an inspection looks at is the working of a department or system as a whole rather than at the conduct of individuals within it, the inspection process would never involve formulating some kind of allegation against an individual in respect of which an explanation is sought. Mr Maurici, of course, argued that Ofsted, even on its own case as to fairness, had failed to discharge the obligation because the gist of the main concerns had not been made plain to the Claimant as the inspection proceeded. However, he submitted that the obligation went further than that. Relying on the decision of the Privy Council in Mahon v Air New Zealand Ltd

[1984] AC 808

, at 820-821, he suggested that the relevant rules of natural justice applicable in respect of a report are the two propositions set out in that case, neither of which, he submitted, had been complied with in this case: “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”. …

[481]In Ofsted's Skeleton Argument it was asserted that these requirements were satisfied in this case and that the Claimant "had every opportunity to put before the inspectors whatever she wished, although she did not use it." I am not clear whether that response is maintained in its entirety, but I cannot accept that it truly reflects what happened during the inspection or that the obligation on the part of Ofsted in the context of this inspection was as asserted by Mr Maurici.

[482]I do not, of course, dispute the authority of the decisions to which reference has been made and their binding nature on me. However, their context has to be considered. Ex parte Moore involved the issue of the procedure before industrial injuries commissioners who were charged with deciding whether someone was entitled to industrial injuries benefit, the procedure involving the calling of evidence by the parties and the evaluation of that evidence. Whilst the procedure was not the strict procedure of a civil trial, the essential requirements of natural justice involved the matters referred to in the extract of the judgment quoted in Mahon. Mahon itself did involve the preparation of a report by a Royal Commissioner (a New Zealand High Court Judge), which was in the nature of an inquiry, into a tragic air crash. Since the hearing (albeit one taking place under pressure of time) lasted 75 days, it seems to me very difficult to compare the context with the context of a briefly conducted Ofsted inspection such as that involved in this case.

[483]I am inclined to think that searching in the authorities for a framework for how natural justice was to be observed during this inspection is a barren exercise. This was not, as Mr Ward quite rightly submitted, a disciplinary investigation by Ofsted even though, as things turned out, the Secretary of State and Haringey used the findings for removing the Claimant from her position and then dismissing her from her employment respectively. In my judgment, Ofsted’s duty of fairness was simply derived from a duty to carry out a bona fide and open-minded inspection into what they found and to report accordingly. Discussing matters that arose with those “on the ground” in the local authority would have been the only way to form a worthwhile view of what was happening. Concealing emerging concerns would have been unlikely to produce a balanced and fair report. Discussing those concerns with those who could illuminate the position from the local authority’s perspective was plainly important and would obviously have alerted those with whom the issues were raised to possible adverse findings and conclusions. It seems to me that it was at that time that the opportunity to influence the outcome of the inspection came to arise.

[484]As I have already concluded, I do not think it is possible to say that the Claimant was (and indeed others were) denied an opportunity to influence the inspection on the matters of concern (except the one to which I have referred above). What I do not think any individual truly had, because of the limited timescale for the inspection and the media presence surrounding it, was a full, fair and considered opportunity to say something about their personal involvement in the system that operated within Haringey. Whilst that cannot operate to invalidate the Secretary of State’s decision to replace members of the management team, it is arguably of very considerable importance in considering the outcome of any dispute about whether grounds for dismissal (certainly, summary dismissal) by Haringey were made out. A retrospective on the inspection

[485]The Ofsted witnesses did not disguise the unique nature of the inspection. There were, however, instances where the language used in their witness statements to describe what occurred seems to me to have been more akin to the language that would have been used to describe the measured way in which a usual JAR would have been carried out.

[486]One feature of the additional disclosure by Ofsted was the documentary material reflecting upon the inspection after it had been carried out. Ms Brown produced a memorandum which must have been formulated within a week of seeing the Secretary of State on 1 December. It was distributed to her colleagues on 8 December. I am proposing to set out its terms below. On two separate days in January 2009, presentations by some of those from Ofsted involved in the inspection took place in which slides were prepared showing what had occurred and the comments of some of those involved. The documents relating to that were also disclosed as part of this additional disclosure. I will return to aspects of that briefly below: see paragraph 489.

[487]Ms Brown’s memorandum contained a series of recollections of what occurred with associated recommendations for the future conduct of such an inspection if one was demanded again. She referred to the fact that there was little or no time for advance reading, the difficulties she indicated that the team faced by not having a “named JAR link officer” from Haringey to assist with timetabling (as requested of Haringey), not being provided in timely fashion with a list of all staff who worked with children and young people and a list of all children and young persons subject to a child protection plan or ‘looked after’. She also set out a list of “Other issues” which contained observations and recommendations. I will omit in general the recommendations, but will set out her observations in full. They were in the following terms: 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] [* 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]

[488]I rather think that the content of this memorandum speaks for itself. However, a number of matters are worthy of note: 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”.

[489]So far as the two internal presentations in January 2009 are concerned (see paragraph 486 above), there are aspects that support the themes that appear in that memorandum. One of the slides referred to "the acute pressure on the [local authority] as the week progressed, meant that the decision was taken to reduce meetings with some senior officers to essential points only" and that "the pressures and attendant stress meant that [Lead Inspector/Deputy Lead Inspector] reduced to the essential the points to triangulate/challenge with the DCS as the week progressed." Whilst this does not mean that there was no opportunity for the Claimant to address the issues as they were presented, it reflects a significantly diminished quality of opportunity.

[490]These issues are only of concern in my evaluation of the opportunity there was on the part of the Claimant to comment on the gist of Ofsted’s concerns. It is, as I have said elsewhere (see paragraph 348), just possible that had Haringey questioned the conduct of the inspection with the inspectors more closely, there would have been a degree of concern about whether the Claimant had had a fair opportunity to put her case about her personal responsibility for any deficiencies that had been identified.

[491]I must now turn to Haringey’s decision-making processes.

(c) Haringey’s decision

[492]There is no doubt that the local authority appoints a DCS to a position defined and provided for by statute. The person so appointed has a contract of employment with the local authority - not, of course, with the DCSF. The rights of the local authority to terminate that contract of employment will depend upon the terms of the contract and the remedies of a DCS who believes that he or she has been wrongfully or unfairly dismissed would, at first sight, depend upon the law of contract and/or the statutory provisions relating to unfair dismissal if the relevant qualifying period in respect of the latter has elapsed.

[493]However, statute also permits the Secretary of State to give directions the effect of which are to require the local authority to replace the DCS with someone of the Secretary of State’s choosing. That occurred here. I have not been told of any arrangements there may be between central government and a local authority whereby the former indemnifies the latter in respect of any contractual damages that may have to be paid by the local authority to an employee unfairly removed from his or her office because of a decision of central government. If the local authority considers in this kind of situation that the Secretary of State has exceeded his powers or has acted irrationally or unfairly in making the decision, judicial review seeking the quashing of the directions could be sought. Equally, the DCS affected by the directions has the right to challenge the decision by way of judicial review as has occurred here. (As I have already observed, whilst the Secretary of State argues that the challenge is misplaced, it is not argued that the Claimant does not have the locus standi to bring such an application.)

[494]An important issue arises as to the most appropriate legal process for a DCS to follow if aggrieved by the decision of his or her employer to terminate the contract of employment in consequence of the direction of the Secretary of State which the local authority does not challenge. Should a challenge of the local authority’s decision by way of judicial review be permitted? Or is the DCS to be left to his or her remedies under the law of contract and/or the statutory provisions relating to unfair dismissal?

[495]The issue is important in this case, but it also is of importance more generally. It could affect the position of many senior local authority officers whose responsibility it is to oversee the administration of some of the most difficult and sensitive areas of local government action. I would have welcomed a broader focus to the submissions in this area than I received because of its wider implications. That is no criticism of Counsel, merely a reflection of the way in which they have been constrained by the particular circumstances of this case to argue for the respective positions of the parties they represent. I have, therefore, had to venture into what I believe to be this relatively uncharted area largely unaccompanied.

[496]One important comment needs to be made before I indicate my views on this issue. Because of the high emotions engendered by the background to this case, and indeed in the light of statements made publicly by a number of influential people (including the Secretary of State himself) at the time of the Secretary of State’s directions and in the weeks thereafter, it is, perhaps, important, to record clearly and unambiguously that no party to this application has suggested that the Claimant does not have the right to make a claim for compensation for loss of her job if she wishes to make one. Each party may have its own view as to her entitlement to compensation if she pursues such a claim, but those views are wholly irrelevant for present purposes. So too are the views of any influential person, any other commentator or the signatories of any petition. None will have access to all the information upon which to base a fair judgment on the issue according to the law. In a civilised society, where the rule of law must prevail, everyone has the right to an independent judicial consideration of a claim of this nature whether it is perceived by others to be meritorious or not. The only issue that arises in the present case is the avenue that the Claimant must follow in order to make such a claim if she chooses to make one. It is, of course, to be borne in mind that Mr Maurici has said on her behalf that compensation is not the sole objective of the claims she presently makes (see paragraph 32 above).

[497]At the moment, there is an application for judicial review before me in which the Claimant seeks to set aside the decision to dismiss her on the grounds of procedural unfairness. There is, as such, no claim for compensation. Haringey argues that she should pursue any complaint she has about the general unfairness of her dismissal in the Employment Tribunal.

[498]If, as in this case, a DCS has served in his or her position for long enough to be entitled to bring a claim for unfair dismissal, then the Employment Tribunal would be able to consider whether the dismissal in consequence of a direction under section 497A by the Secretary of State was fair or unfair and, if the dismissal was unfair, to grant appropriate relief including making an award of compensation. The minimum qualifying period for anyone dismissed from his or her employment after 1 June 1999 is one year’s continuous employment: see Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 1999.

[499]If, on the other hand, the DCS is unable to invoke the unfair dismissal regime, how then could any complaint of unfairness about the dismissal be considered by a court or tribunal? The reason for asking the question is that, at first blush, the process ought, in principle, to be the same whether the DCS had been employed by the particular local authority for 364 days or 366 days. However, the unfair dismissal avenue is plainly denied to the former, but not the latter. It may well be said that, since this case does involve a DCS who qualifies for the unfair dismissal avenue, the issue is academic. To some extent it is, but the approach in a case where the DCS cannot bring unfair dismissal proceedings may shed some light on the options available to a DCS who can.

[500]I have not had drawn to my attention any comparable case in which, by virtue of a direction of the Secretary of State, a senior local government officer has been deprived of his or her office and has in consequence been dismissed summarily by the local authority by whom he or she was employed. If any such case has arisen in the past, it has not found its way into the reported cases. Section 497A has apparently been used rarely in the past. The internal guidance produced in a briefing document for the Secretary of State on 21 November set out the history as follows:

"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." ...

[501]The nearest past equivalent that I can discern from that document was in Haringey itself in relation to the education system as a result of which, as it happens, the Claimant originally came to Haringey:

"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 ..."

[502]There is no indication in the document about what happens to existing staff employed by the authority that are replaced.

[503]The net effect of all this is that there is in consequence something of a void in legal learning about this kind of situation. Leaving aside the immediate legal issue, there will be those who either are in positions equivalent to that of a DCS, or who are contemplating taking such a position, who will want to know what to do or how to protect their interests if central government decides that their position should be taken over by someone else.

[504]In this case, Ms Simler has argued that the remedy of judicial review is simply not open to the Claimant. Her argument is that any remedy the Claimant may have against Haringey is solely a private law remedy. She relies upon the well-established principle (not disputed by Mr Maurici) that employment disputes are ordinarily not amenable to judicial review. Mere employment by a public authority does not invest the situation with a sufficient public element to render a decision to dismiss such an employee reviewable on public law grounds: see, e.g., R v BBC, ex parte Lavelle

[1983] 1 WLR 23

. Her argument, as it stands, is not that judicial review is precluded because an alternative remedy has not been pursued: it is that judicial review is simply not available as a remedy. Although not canvassed in argument, the logic of her position is that if a DCS (or someone in an equivalent position) is dismissed before having qualified to make a claim for unfair dismissal, that person would simply have to rely upon his or her contractual rights under the contract of employment.

[505]Mr Maurici argues that the fact that the position of DCS is provided for and defined by statute is sufficient to confer the status of “office holder” on the holder of such a position. That, on the authorities, he submits, results in the availability of judicial review of the remedy as against Haringey. As I have already indicated, there is no issue but that vis-à-vis the Secretary of State, judicial review as a remedy is available to a DCS in the situation that occurred in this case. Does that extend to the contractual employment of the DCS?

[506]Ms Simler responds to Mr Maurici’s argument by saying that the fact that the Claimant was a statutory office holder as well as an employee of the local authority does not mean that her dismissal is properly amenable to judicial review. She argues that Haringey did not remove the Claimant from her statutory office: that removal had been effected by the Secretary of State’s Directions. When that occurred Haringey took a private law decision about whether to continue the Claimant’s employment in the light of removal from her statutory office. It decided it could not, and the Claimant’s employment with Haringey was determined for all practical and effective purposes. The principle established in McLaughlin v Governor of the Cayman Islands (see paragraph 371 above), she argues, has no application.

[507]Ms Simler submits, accurately, that prior to the introduction of the employment protection legislation there were three categories of employment case in respect of which only the third attracted the remedy of judicial review. The first two categories covered(i) what was then called the ordinary “master/servant” relationship and

(ii) those who held office “at pleasure” – in other words, simply at the mercy of the appointer to the office. In both these categories dismissal could take place without any reason being given and there was, accordingly, no duty to afford the employee or the holder of the office an opportunity to be heard or otherwise to be given the protections afforded by the rules of natural justice. The third category, namely, that of officeholders, was a category in respect of which there was an obligation on the part of the employer to give reasons for the termination of the office and to respect the principles of natural justice. A failure to do so gave the officeholder the right to apply to the court to quash the decision. All this was confirmed in the well-known case of Ridge v Baldwin

[1964] AC 40

. With the advent of the employment protection legislation (starting, for this purpose, with the Industrial Relations Act 1971 and as now consolidated and developed in the Employment Rights Act 1996) in order for a dismissal to be fair, the reason for any dismissal of a qualifying employee must relate to conduct, capability, redundancy or “some other substantial reason” and, in broad terms, the dismissal must be procedurally fair and accord with the basic requirements of natural justice: see section 98 of the 1996 Act (and see further at paragraph 513 below). The concept of the right to natural justice for an employee facing termination of his or employment is now, Ms Simler submits, subsumed within the statutory protection from unfair dismissal and it is highly unlikely, she says, that the older cases decided before the advent of the employment protection legislation would now be decided in the same way. In the vast majority of cases, she contends, that the appropriate forum for resolving disputes about natural justice in relation to dismissal will be the employment tribunal.

[508]Ms Simler argues that the relevant legal principles applicable are to be found articulated in R v. East Berkshire Health Authority, ex parte Walsh

[1985] QB 152

where the Court of Appeal held that the decision to dismiss a senior nursing officer employed by a local health authority was not amenable to judicial review. It is correct to note that May LJ said this of the earlier authorities (at p 169):

“ … 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.”

[509]There is, in my judgment, a fair degree of force in much of what Ms Simler submits, but I cannot accept it in its entirety without some qualification. I would accept that, if only from a practical point of view, a DCS (or equivalent office holder within a local authority) who is replaced pursuant to a direction of the Secretary of State under section 497A and who is then arguably unfairly dismissed by the local authority will find a claim for unfair dismissal in the Employment Tribunal to be the most advantageous way of proceeding. The merits in the broadest sense (see paragraph 513) can be reviewed, there are no significant costs risks associated with the proceedings and the tribunal is comprised of those with considerable experience of the employment law field. If the purpose of the proceedings is simply to demonstrate that the dismissal was “unfair” with a view to clearing the name of the employee involved, this can be achieved in the unfair dismissal proceedings: see, e.g., per May LJ in Walsh when he said “[how] much more quickly and cheaply this could be achieved by obtaining a finding from an [employment tribunal] that he had indeed been unfairly dismissed.”

[510]However, as I have observed already (see paragraph 499), there may be (doubtless very rare) circumstances in which a DCS (or equivalent) is replaced by a direction under section 497A, and is then dismissed by his or her local authority, but who has not acquired the right to claim for unfair dismissal. Leaving aside any remedy that he or she might have against the Secretary of State (which, if my general conclusion above is correct, is likely to be highly circumscribed), there would be no opportunity to argue that the local authority’s decision to dismiss was unfair unless a right to seek judicial review of the local authority’s decision was available. I cannot think that Parliament intended, or that the courts would countenance in modern times, a situation in which a challenge to dismissal on the broad ground of unfairness was denied in these circumstances. A theme to that effect ran through many cases before the incorporation of the European Convention on Human Rights into the national law (see, e.g., see Nagle v Feilden

[1966] 2 QB 633

; Breen v Amalgamated Engineering Union

[1971] 2 QB 175

and McInnes v Onslow-Fane

[1978] 1 WLR 1520

), but it is reinforced by a case such as R (Wright and others) v Secretary of State for Health

[2009] 1 AC 739

. In my judgment, in that situation if it arose, the court would afford the DCS an opportunity to challenge the fairness of the dismissal by the local authority on traditional public law grounds because the position that he or she occupied until replaced by virtue of the Secretary of State’s direction was a public office. That would be the only means by which such a challenge could be maintained. Sufficient statutory underpinning would be afforded by the dual position of a contract of employment and an office specifically provided for by statute.

[511]If the court is obliged to take that route in that situation, logically there is no reason not to take it when the DCS has the remedy of a claim for unfair dismissal: the same “public office” element exists, notwithstanding that another route than judicial review exists for asserting a claim based on unfairness. However, in that situation a far more convenient route exists for establishing the unfairness (if it took place) than the route of judicial review for the reasons I have summarised above. Whereas, as it seems to me, where a claim for unfair dismissal cannot be made, a claim for judicial review has to be the claim of first resort for a DCS in the position I have described, where the opportunity to seek a remedy for unfair dismissal does exist, it seems to me that a claim for judicial review should be the remedy of “last resort” rather than “first resort”. This means that, whilst the jurisdiction to grant judicial review exists, it may be inappropriate to consider the application or to grant relief.

[512]Matters of this nature are usually dealt with at the permission stage of judicial review applications (see Fordham, op cit, paragraph 36.3). However, Haringey’s case, as I have indicated, has been that there is no public element to the Claimant’s position and that when she was dismissed by Haringey it was “entirely a private law matter” (a position advanced in an e-mail on behalf of the Head of Legal Services as early as 20 March 2009 and repeated in the Summary Grounds of Resistance) and, as a result, there was thus effectively no jurisdiction to entertain a judicial review claim. Accordingly, on this argument the issue of an alternative remedy does not arise – and thus did not arise at the permission stage. I have, however, taken a different view in terms of pure jurisdiction, but am of the view that the alternative remedy should, in accordance with normal principles, be exhausted before consideration is given to any relief within the public law jurisdiction. Since, in the circumstances, that relief would probably only amount to a declaration that her dismissal was unfair on procedural grounds (if that is established), it is plainly an issue that is best considered by the Employment Tribunal which, as I have said, can look at the matter more broadly and with all the specialist expertise at its disposal.

[513]The Tribunal will be able to consider the reasons given for her dismissal, which do not appear to have been any suggestion of redundancy or of her capability or conduct, but the effect of the Secretary of State's direction and the alleged breach of the implied term as to trust and confidence (see paragraph 318 et seq above). These reasons are presumably said to amount "some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held" (s.98(1)(b), Employment Rights Act 1996). As is said in Chitty on Contracts, 30th ed., Vol 2, "[this] is a residual catch-all category leaving the whole issue ultimately within the discretion of the tribunals and courts." Chitty indicates that the matter is looked at in this way:

"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 ...."

[514]Having reached the conclusion that I have I am presented with something of a dilemma. In the normal course of events, I would draw back from making any observations about the merits or otherwise of the Claimant’s suggestion that, irrespective of anything done in relation to her position by the Secretary of State, she was, in any event, the subject of unfair procedural treatment by Haringey since that would be a matter for the Employment Tribunal. However, since the effect of reaching the conclusion that I have means that I must dismiss the Claimant’s judicial review case against Haringey, it is, of course, possible that the Claimant will wish to appeal against that decision. Although I was told during the proceedings in October last year that the Claimant’s resources ran only to pursuing the case then advanced and no further, I cannot (and indeed, would not wish to) regard my decision as one which may not be the subject of appeal. Any litigant has that right if permission is granted and, equally, has the right to a change of heart about a previously expressed intention concerning an appeal.

[515]It seems to me that, for the benefit of the Court of Appeal should this aspect of the case find its way there, I need to set out, perhaps as briefly as I can, the features of the case that, in the absence of an alternative route to relief and subject to argument about the precise terms of any relief granted, might have persuaded me to say that the Claimant’s judicial review claim would have succeeded against Haringey. I should make it absolutely plain that, if the case does not go to the Court of Appeal, but the Claimant does pursue her claim for unfair dismissal, my reference to those various factors is not intended in any way to influence the outcome of those proceedings, one way or the other. As I have emphasised more than once in this judgment, a judicial review claim has a narrow focus and the Employment Tribunal has the opportunity for a wider focus on the issues. Further, again as I have said on a number of occasions, I have not had the advantage of any oral evidence and have had no basis for assessing any of the witnesses as witnesses or the personalities of those involved. The Employment Tribunal will form its own view on all relevant factors, including the evaluation of any witness, wholly uninfluenced by anything that I have put forward in the somewhat tentative way that I feel obliged to do.

[516]With, I trust, those parameters being understood clearly, I will indicate where, on the material before me, I would regard the process adopted by Haringey to be vulnerable to arguments as to unfairness.

[517]There are some essential background factors that, if overlooked in the haste to comply with the Secretary of State’s direction of 1 December 2008, should not have been overlooked. First, the Claimant had by all accounts given excellent service to Haringey for some seven years or so before her dismissal. I have already noted the comments made about the Claimant by Dr O’Donovan (see paragraph 14 above) and the support she received from many local head teachers with whom she had had dealings when she had been in charge of the education arrangements within the Borough. Second, she had become the first DCS within Haringey after the relevant provisions of the Children Act were implemented. That was a position, given Haringey’s particular history, that carried huge responsibilities and a huge risk element. Anything that went wrong in Haringey so far as child protection was concerned was bound to have high profile implications. Anyone who took on that role and who continued it with apparent success would be entitled to expect, at least as a starting point, significant support if something did go wrong. The presumption, it may be thought, would be one of collective responsibility for a failure in the systems in place if something did go wrong. Against that background, the starting point for a responsible and considerate employer (acting as an employer) would be to be concerned that a respected and loyal employee who is the subject of critical comment, whether by a Government Minister, a national newspaper or any other commentator, is treated fairly in any ensuing consideration of his or her position within the Council.

[518]Haringey should, in my view, have striven not merely to be fair in what it did so far as the Claimant was concerned, but to be seen unequivocally to have been fair. I recognise fully and unreservedly the enormous pressures to which its members and officers were being exposed at the time that the Ofsted report was made public and the Secretary of State’s decision was being announced. There were, as I have recorded elsewhere in this judgment, calls by many people and newspapers for the Claimant’s dismissal without compensation. Whether that ultimately was to be the decision made is in one sense irrelevant for present purposes. What is relevant is that when calls of that nature are made those to whom the calls are directed must act with, and must be seen to act with, scrupulous fairness. Otherwise, fair processes according to law will simply be subverted by the political or media pressures of the moment. Anyone who holds public office must be expected to ensure that, whatever the pressures, proper process is observed. The consequences of not doing so will be plain to anyone who thinks about it.

[519]As I have already said, I can well understand the difficulties involved. It will have been a difficult balance to strike between accepting (and being obliged to accept) the Secretary of State’s decision and acting upon it immediately and yet maintaining a firm line that fairness to the Claimant (and indeed to the others who were affected by the direction) needed to be displayed. However, the law expects and demands that such a balance is to be shown.

[520]In the circumstances in which the report was prepared and presented to the Council (with only about an hour to look through it before it was published), it was impossible for the Council’s representatives to refute it or any part of it even had they wished to do so. That has to be accepted as the position the Council was faced with on the day it was published and I do not think the Council can be criticised for not disputing the core findings at that point. However, as a crucial document in any consideration of the employment position of the Claimant (and the others), it demanded, in my view, rather further investigation before steps were taken pursuant to it. (I should, perhaps, say that I had formed that view before Ofsted’s further disclosure took place, but it has been reinforced by that disclosure.) The Council will have appreciated the speed with which events starting after Prime Minister’s questions on 12 November took place. Within a week of that the Ofsted inspectors had already completed two days of their fieldwork at Haringey. The pressures were so great that the Service Manager had not reported for work on 17 November, the Deputy DCS did not return to work after 20 November and two senior Council members were reduced to tears. During that week the Claimant had been so significantly under the media spotlight that Haringey had considered applying for an injunction designed to protect her – indeed instructions to Counsel had been prepared with a view to pursuing such a case. Leaving aside anything that the Ofsted inspectors might have said about the Claimant’s ability to focus on things that week had they been asked about it, Dr O’Donovan had been very concerned about her (see paragraph 160 above) and her “variable ability to concentrate during this very difficult period.”

[521]Against that background, one of the first questions that needed to be considered when the Claimant’s personal responsibility for the failings identified in the report came to be examined was the extent to which she had had a full and fair opportunity to comment on Ofsted’s criticisms, or potential criticisms, during the inspection process in the light of the very significant personal distractions she faced. Indeed, even if, as it turned out, Ofsted had been unwilling to share its evidence base with Haringey, the inspectors, if asked, might have been prepared to accept that they too were concerned about her ability to focus properly. There is clear evidence that they were concerned about that matter (see paragraph 282).

[522]Whilst, of course, the evidence before me has been prepared for a particular purpose, it does not contain any suggestion that anything like this was investigated by Haringey in the aftermath of the publication of the report and the Secretary of State’s direction. The indication of the Council’s position, through Dr O’Donovan’s statement at the news conference, is that “the legal process” would be followed “as speedily as possible” (see paragraph 314 above). Dr O’Donovan did not say, for example, “We will be considering with her, calmly and without pressure, the implications of the report from her personal point of view and from the point of view of her contract of employment with Haringey.”

[523]The next step in the process undertaken by Haringey was to convene the first disciplinary hearing and I have set out the background to that in paragraph 322 et seq above. Mr Young wrote saying that there would need to be an expedited hearing at which the question of whether the Claimant would be dismissed was to be considered. No question was raised by him as to whether she would by then have had an opportunity to take legal advice. He did not ask her whether this was convenient to her: he simply said that it was his opinion that “it was in the interest of both parties to expedite matters.”

[524]What then of the preparations for that hearing? There is the question of whether there was to be any “investigation” (see paragraph 318 et seq above). The allegation that was to be made against the Claimant was that the Ofsted report evidenced a failure on her part to maintain the relationship of trust and confidence between her and the Council. Apart from the broad suggestion that the findings of the report demonstrated this failure, no particulars of that suggestion were drawn up and presented to the Claimant. Whilst, in one sense, it is correct to say, as Ms Simler reminded me, that this was not a potential dismissal based upon matters of conduct (which would require the particularisation of allegations), the essential matter being suggested was that aspects of what the Claimant did or did not do resulted in the breach of that implied term. To that extent, one would have thought that ordinarily some more precise particulars of what it is that she did or did not do would be provided to her. It does seem to me at least to be arguable (although this would really be a matter for the Employment Tribunal) that some rather more precise particulars were required of that assertion. There is a considerable amount of learning in the employment law field about what may or may not in particular circumstances constitute a breach of the implied term as to the preservation of mutual trust and confidence and an issue certainly arises as to whether some reasonably precise particulars of what is relied upon ought to have been given. At all events, there is no evidence that this was done in this situation. All that appeared in Mr Young’s letter was the suggestion that the issue of the failure of the effectiveness of the management of child protection services at the most senior level would be addressed at the disciplinary hearing.

[525]The Panel included Councillor Reith. What I am about to say is, of course, no reflection upon her personal integrity and I recognise that she has put in a statement in these proceedings saying that she was not biased against the Claimant and I am, of course, happy to accept that that was so. However, that is, with respect, not the point and normally little weight is attached to such statements: see, e.g., R (Georgiou) v London Borough of Enfield

[2004] EWHC 779

Admin. She does not in that witness statement deny that she either said, or associated herself with a statement, that the Claimant should not receive any “payout” or words to that effect. She also said that the Council accepted all the findings of the report. Having said what she said about a “payout” at the press conference, or having associated herself with something like that, there will clearly be an appearance of bias because it suggests a predisposition towards the conclusion that the Claimant’s dismissal was inevitable (which Ms Simler has been anxious to suggest it was not) and indeed, not merely that there should be a dismissal, but one of a summary nature without compensation. For my part, I would have had no reservations about saying that that hearing was sufficiently flawed for any decision based upon it to be set aside unless it could be shown that the decision was so inevitable that it simply did not matter.

[526]Ms Simler has argued that the Claimant made no challenge to Councillor Reith’s participation in the hearing. Factually, she is correct in that assertion. However, I would make two observations about it: 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.

[527]I should, perhaps, add that I am surprised that no-one thought to suggest to Councillor Reith that she should not be on the Panel. Irrespective of whether she said something to the effect I have mentioned, she was plainly present when Dr O’Donovan said what she said (see paragraph 315 above) and, if she did not disassociate herself from the observation, she could easily be identified with it. It is all the more surprising given that the Panel of which she was a member said expressly when giving its decision that they “took no account of the statement by the Chief Executive at the Press Conference on 1st December 2008 in reaching its decision” (see paragraph 337 above).

[528]At all events, for the reasons I have given I have very considerable doubts as to the validity of the process that led to the decision on 8December. As I have indicated previously, the communications between Haringey and Ofsted between 1 December and the date of that hearing about Ofsted’s findings were not disclosed to the Claimant. For the reasons I have given previously, I consider they were potentially relevant: whether Haringey’s requests were actively intended to be searching for evidence to support the disciplinary proceedings or there was a different motive behind them is irrelevant. They were capable of being interpreted as seeking further evidence and, in the right hands, that could have been deployed to suggest that Haringey was uncertain about whether it had a proper basis for any disciplinary action against the Claimant – and perhaps the others involved. It follows that she was disadvantaged (or potentially disadvantaged) at that hearing. A little less haste, coupled with some clear thinking about the nature of the process to be followed, would have been better. As it was, all the appearances were of a hastily arranged procedure the outcome of which appeared (not necessarily was, but appeared) to be a foregone conclusion. That appearance is given greater credibility when assessed by reference to the things being said publicly about the possibility of compensation to the Claimant.

[529]The appeal hearing took place in the circumstances I have previously described (see paragraph 349 et seq). The Panel came to the same conclusion as the earlier Panel following what was said to be a “rehearing”. I have already set out the reasons given for that decision (see paragraph 361). Those reasons would doubtless be considered by the Employment Tribunal and I will confine myself to one observation about those reasons below. However, the question from the public law perspective, if the matter fell to be dealt with by way of judicial review, is whether it was a hearing that could be seen to be fair. If so, arguably it would “cure” the defects in the earlier hearing. There are three matters that cumulatively have persuaded me on the papers I have before me that the hearing did not reach a fair procedural threshold. They are as follows: 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).

[530]For my part, therefore, I would have been persuaded that this hearing was also flawed and, accordingly, could not have “cured” the defects in the first hearing – not, I hasten to add, because of any reflection on the integrity of the members of the Panel. It is largely a question of appearance, although (i) and (iii) are somewhat more substantive. However, as I have said before, I have put forward these conclusions simply so that my view on the case is known should my principal conclusion (namely, that the Employment Tribunal is the right place for this dispute) is challenged on appeal.

[531]The overall impression gained of Haringey’s approach (perhaps understandable given all the external pressures) was that the sooner the Claimant was dismissed with no compensation, the better, and that everyone could “move on” once that had happened. However, simply because the Ofsted report was in the terms it was, and the Secretary of State acted as he did and he, others and various national newspapers called for the Claimant’s summary dismissal was no proper justification for taking such an approach and it created the appearance of an unfair process.

[532]I do not wish to trespass further into what would truly be the province of the Employment Tribunal if the matter goes there. The Employment Tribunal is not confined (as I am) to issues of purely procedural unfairness. However, there is one matter upon which I have already touched that I would mention once more. The Employment Tribunal will have before it the Claimant’s contract of employment. Since the obligation on the local authority is “to ensure that the DCS’ … responsibilities are aligned with the guidance in this document” (ie. the statutory guidance to which I referred in paragraph 76 above) this presumably means that the contract to which a DCS is required to sign up spells out the guidance, refers to the statutory guidance or articulates the effect of the guidance in some other words. I have not seen the contract entered into between the Claimant and Haringey, but a contractual obligation seeking to give effect to the concept of “accountability” in the manner defined in paragraph 4.16 of the statutory guidance (see paragraph 77 above) would be a matter that would require careful consideration in order to determine precisely what her contractual obligations were if “accountability” is a concept that can justify summary dismissal. I have already alluded to how the concept of “accountability” was given prominence in the Secretary of State’s decision to promulgate the directions of 1 December and to the fact that it was something mentioned specifically by the Appeal Panel in January. An important issue for the Employment Tribunal may be how that concept plays in the field of the employment contract: I venture to think that it is, in that context, not an entirely straightforward matter (see paragraph 386 above).

[533]As I have said, I express no view about the outcome of any such proceedings.

Overall conclusions

[534]The standard of fairness to be shown in the pursuit of any administrative or quasi-administrative process does, according to well-established legal authorities, vary with the circumstances: see paragraphs 373-374 above. What happened in the events giving rise to this case were unusual, to say the least – perhaps unique.

[535]Nonetheless, it is clear, in my view, that(i) Ofsted was not carrying out a disciplinary inquiry into the Claimant's conduct as DCS on behalf of the Secretary of State and

(ii) he was not performing a true disciplinary function in removing her from her office. It is unfortunate that words were used at the time that may have created the public perception that this was what happened. Some of the media reporting will have added to that perception. The Secretary of State’s true concern, and Ofsted's true ambit of inquiry, was into the working of Haringey's CYPD and the other agencies with responsibility for child protection. Because of the public reaction to the verdicts in Peter's case and the questions it raised, there was an urgency in finding out whether those agencies were operating effectively (a) because there were other vulnerable children in Haringey whose interests demanded protection and (b) because what had happened raised concerns that in other places across the country the relevant safeguards were not in place. That judgment made by the Secretary of State has not been called into question. Although the request to Ofsted to conduct the investigation has been called into question, I cannot see any rational basis for doing so unless the whole venture was a "put up job" to secure a specific result for some ulterior motive. I cannot reach that conclusion on the evidence before me.

[536]When any kind of urgent investigation is ordered, corners will be cut. That plainly took place here. Ofsted cannot be criticised for that. Unless they went in with preconceived notions of what they would find, the inspectors did the best they could in the difficult circumstances with which they were presented and did raise most of the matters that drove the final conclusions of the report with representatives of Haringey, including the Claimant. The manner in which the final version of the report came to be drafted would not have been revealed in these proceedings if the additional disclosure by Ofsted had not taken place. Questions have been raised about that process, but it is beyond my legitimate remit to answer those questions.

[537]The inspection found Haringey’s child safeguarding arrangements at the time wanting - and seriously so. I repeat, for one last time, that it is not my task to decide whether that judgment was right or wrong or whether, by some deliberate process, the judgment was expressed more strongly than the evidence justified.

[538]Once that judgment was in place, the Secretary of State was plainly entitled to act as he did. Indeed it is difficult to see how he could not take some action. The action he chose to take was a matter for him.

[539]Whilst the rights of individuals to fair treatment in the exercise being carried out by the Secretary of State were of necessity lower in the scales of importance than taking steps to reassure the public that child protection was being treated as of paramount significance, those rights were not obliterated completely. In the somewhat unusual legal structure whereby the Claimant’s contract of employment was with Haringey, it was Haringey that had the ultimate responsibility for acting fairly in relation to her employment status and her future. They were responsible for protecting her rights. I have already made it clear that, in my view, the Secretary of State should not have gone on to express a view about what should happen in that regard. His statutory role in relation to the Claimant and her Deputy ended when he made the directions he did on 1 December. If newspapers or other commentators wished to suggest what the outcome should have been, they were entitled to do so. But the Secretary of State should not have been seen to give support to those views nor, in my view, should he have made critical comments of the Claimant and her Deputy publicly based upon things not in the report and said behind closed doors when they had not had an opportunity to refute them. And, as I have made clear, those who did have the responsibility for making the relevant decisions should not have been influenced, or have been seen to have been influenced, by such views.

Concluding remarks

[540]Having endeavoured to apply the correct legal principles to the facts that underlie this case, I have come to the conclusion that the Claimant has not established an entitlement to relief against the decisions of the Secretary of State or against Ofsted. I will not disguise the fact that I have reached those conclusions with a lurking sense of unease. This is for two reasons, one of general application and the other more directly concerned with the particular circumstances of this case.

[541]First, I am not sure to what extent the inter-relation between the Secretary of State’s powers under section 497A and the contractual obligations of a local authority towards an employee who has to be removed from a position because of a direction under that section has been considered by Parliament. The Court is left having to try to fill a gap in the procedures that is not easy to fill. There is, as it seems to me, a danger that someone in a position such as that occupied by the Claimant will fall between two stools. (I venture the thought, in passing, that there should be discussions in due course between central government, local government organisations and representatives of those who are employed in positions that might be affected by a direction under section 497A in order to establish a protocol for dealing with this kind of situation if it arises in the future. I cannot think that any party will truly look back at how matters were handled in this case with complete satisfaction.)

[542]Second, although her detractors will doubtless never have a good word for her and will say that she has brought everything upon herself, there may be those who fear that the Claimant has been made a scapegoat. In her appeal hearing at Haringey she said of the day of Prime Minister's Questions and the conversations in the afternoon about her suspension that her "head had been sent for and wasn't delivered and as far as I'm concerned what happened next delivered it." That neatly sums up the way those who consider she was made a scapegoat would see the position. It is, of course, no part of my task to decide whether she is right or her detractors are right.

[543]However, of one thing I am absolutely clear: a concerted mission to make someone a scapegoat for the failings of others or for the failings of a system that was doomed to be characterised as a failure in any event is repugnant to ordinary notions of fairness and justice in a civilised society. The law will always do what it can to overturn the consequences of such an exercise if it is shown to have occurred. If there had been a sustainable case that the Ofsted report had been 'made to order' at the instance of, or on behalf of, the Secretary of State and that the results of the inspection were thus either a foregone conclusion or had been manipulated to give grounds for his decision, the outcome of this case would have been different. Suggestions of such dark processes have been made during the proceedings. Ofsted’s inept handling of its obligation of candour during the case may at the time it was revealed have appeared to provide a key to an otherwise locked door. When the further disclosure took place, the suggestions were renewed with greater vigour. However, on the evidence as deployed before me, those suggestions could not be translated into anything of greater substance whatever suspicions, on one interpretation of the material, might have been engendered.

[544]Had any such case been substantiated it would have been an instance of the irresponsible use of power so perceptively identified by the influential American theologian, Reinhold Neibhur, who wrote this in the rather different circumstances prevailing in August 1944:

“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.”

[545]Those words were written in the Foreword to his work entitled, somewhat appropriately in the context in which I quote them, ‘The Children of Light and the Children of Darkness’.

[546]The point simply is this: the court’s power to intervene in respect of an administrative decision exists to ensure that it is not made unjustly in the sense that, when a fair process is required, the adoption of an unfair process will operate to undo the decision. For the reasons I have given I have not been persuaded that the grounds for intervention have been made out as against Ofsted and the Secretary of State. Whether Haringey was unfair in the way it dealt with the Claimant's dismissal (not merely procedurally, but substantively) will, if she pursues the case, be decided ultimately by the Employment Tribunal.

[547]In his powerful closing written submissions, Mr Maurici made a strong plea for the conclusion that the Claimant was simply in the wrong place at the wrong time. Because my review of the evidence has been limited to a consideration of the written statements and other documentary material, it is impossible for me to reach an informed view about that submission. It is possible that there is at least a grain of truth in the suggestion. Had Dr Sabah Al-Zayyat diagnosed correctly Peter's physical condition a few days before he died, the chances are that he would have lived and the Claimant and her colleagues may not have faced what they have had to face as a result. The child protection system in Haringey might in the meantime have acquired at least an established “adequate” status in Ofsted terms before something as tragic as the death of a young child occurred. Furthermore, if in the immediate aftermath of the verdicts in the criminal case the Claimant had presented a somewhat more overtly apologetic approach at the press conference that day she might not have faced the hostility from some sections of the public that she has faced. In short periods such as these fates are sealed.

[548]But when thinking of those who were in the wrong place at the wrong time, sadly, tragically, but inevitably, one can reach no other conclusion than that was so for Peter. 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

[1]I am grateful to the parties for providing me with written submissions following the order made on 11 December 2009, the timetable for the observance of which has been varied from time to time subsequently.

[2]For the record, the submissions and other material I have received are as follows:(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.

[3]I have read through each of these submissions once. I have not had an opportunity to consider each in detail or to consider the underlying documents to which those submissions are directed. I have had a brief look again through the written submissions I received during and immediately after the hearing in October last year.

[4]It will, I am sure, be appreciated that there is a sizeable volume of material to consider before I can form a view on the arguments in the case and then produce a final judgment. A large number of issues, legal and otherwise, are raised. I need to emphasise that because I wish to raise one broad issue with the parties (principally with the representatives of the Claimant and Ofsted) at this stage. It is, however, only one issue in the case and it may or may not be important to its ultimate outcome. However, I need further assistance from the parties on how to deal with it. I will not regard myself as having reserved judgment finally in the case until I have determined how it is to be addressed.

[5]I have decided to raise the matter in written form for the purposes of expedition and the saving of costs. The question I will be raising is the kind of matter that I would have been able to raise with the parties had the written submissions I have received been presented to me orally at a hearing. Because I regard the receipt of the written submissions as effectively a continuation of the hearing commenced in October last year and because of the widespread interest in the case, I will be releasing this communication to those members of the Press and media who applied to me under CPR r.5.4C(2) for permission to copy the recent sequence of submissions and the relevant underlying documents.

The issue

[6]The issue relates to the extent to which the Claimant had the opportunity during the course of the Ofsted inspection to address the points of concern arising during that inspection. It is accepted by all parties that it is not my task in these judicial review proceedings to adjudicate upon the validity of the conclusions reached by the Ofsted inspectors or to evaluate the evidence upon which they rely. I would add to this that it is not my responsibility to consider the competence or otherwise of those engaged in the process. However, one issue that has been raised for consideration is whether the Claimant had a fair opportunity to respond to matters upon which, in due course, critical comment was made in the report upon the basis of which the Secretary of State’s decision was made. The Claimant’s case is that not even the gist of what was said in the report to be matters of serious concern were communicated to her during the inspection. Accordingly, her case is that she had no opportunity to respond to them. Ofsted’s case is and has been that she had been given the opportunity to comment on the central concerns relating to her areas of responsibility in a series of meetings and interviews during the inspection.

[7]There is, therefore, a clear issue of fact between the Claimant and Ofsted. There are, as I have indicated, many other issues in this case, but it is an issue that may arguably lie at the heart of it. Whilst the resolution of the issue of fact may have implications for the Secretary of State and for Haringey, it seems to me to be an issue purely between the Claimant and Ofsted.

[8]It is right to say that the issue of fact has existed from the time the evidence was exchanged in the proceedings and, of course, it pre-dated the additional disclosure from Ofsted that has given rise to the recent sequence of submissions. Indeed it is something upon which detailed submissions were made by all parties, though principally by the Claimant and Ofsted, at the hearing in October. No party sought an order for cross-examination of the witnesses (which would, in the context of judicial review proceedings, have been unusual in any event) and all parties made submissions based upon the witness statements and the documentary material that had been disclosed, each contending that the contemporaneous documentary material supported their case and undermined that of the other.

[9]There has now been further disclosure by Ofsted and some of it undoubtedly reflects on the circumstances in which the inspection took place and the extent to which discussions with the Claimant were or were not feasible during the period of the inspection. It is argued on the Claimant’s behalf that this adds to her case on the issue I have identified. Ofsted contends that it does not do so and that there is plenty of material, both in the original disclosure, the Claimant’s own evidence and indeed the new disclosure that supports its case. Each side to this issue is asking me to resolve the conflict in their favour by reference to the contemporaneous documents. Mr Maurici, for the Claimant, submits that I should prefer the Claimant’s evidence where it conflicts with that of Ofsted’s witnesses. Mr Ward, for Ofsted, submits that various points made by the Claimant are “irrelevant, largely misconceived and provide no basis at all upon which to invite [me] to reject Ofsted’s evidence on the contested issues.”

[10]Mr Maurici says that if I do not accept his invitation to prefer the Claimant’s evidence when it conflicts with Ofsted’s witnesses, I should take the unusual (though not unheard of) step of ordering cross-examination of Ofsted’s witnesses. Mr Ward says that it is too late to take such a course and that it is, in any event, unjustified. He says that if, contrary to that position, I do order cross-examination, Ofsted would have “no choice but to seek an order for cross-examination of the Claimant”. Mr Maurici responds to that by saying it is too late for such an application to be made and it is unjustified.

[11]So where does all this leave me? Because I have not had an opportunity to review all the material, including the new material, I am quite unable to say, one way or the other, whether I can accept the Claimant’s version of events as against the version given by Ofsted’s witnesses. If I do so, then, of course, her case (subject to any other arguments that arise) gains strength. If I do not then, on Mr Maurici’s approach, I should direct cross-examination.

[12]From a purely practical point of view, it is quite impossible to approach matters on that basis. The issue of whether I hear some oral evidence needs to be addressed head-on now. If I do hear evidence, it may ultimately prove to have been unnecessary to do so, but that consequence cannot be avoided.

[13]If I do hear evidence, I cannot see how a fair appraisal of the issue that falls for consideration can take place without those Ofsted witnesses who had direct dealings with the Claimant during the inspection giving evidence and the Claimant herself giving evidence. The evidence would be confined to the factual issue of how and to what extent the concerns of the inspectors were raised with the Claimant. The general circumstances in which the inspection was carried out will doubtless be a factor for consideration.

[14]If oral evidence is to be given, Mr Maurici has submitted that Ofsted should pay for the costs of any further hearings occasioned by such an approach. Mr Ward submits that it should be “at [the Claimant’s] own risks as to costs.”

[15]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.

What is needed

[16]I need a clear and unequivocal indication, in the first instance, from the Claimant’s side as to whether I am being asked to receive oral evidence. I am, of course, aware of Ofsted’s position in relation to this. Whilst Haringey in its submissions suggests that there is no basis in the new disclosure for ordering cross-examination of witnesses, the Secretary of State’s submission was silent on the issue. As I have already indicated, it seems to me that this is a matter between the Claimant and Ofsted and no other party.

[17]If I am positively invited to receive oral evidence and to direct cross-examination - and I agree to it - the practical arrangements would need to be addressed. There have been very considerable delays in this case already - all, it has to be said, entirely Ofsted’s responsibility. I am very anxious from every conceivable point of view to progress this case to a conclusion as soon as reasonably practicable. However, I have to achieve that objective in a way that causes no injustice to any party.

[18]If any oral evidence is to be given, my preference would be for this to take place before the Easter vacation, but that leaves about 12 working days and I do not know whether this can be achieved. I do not know how long it is thought the hearing of the evidence (assuming that it comprises those Ofsted witnesses who had direct dealings with the Claimant during the period of the inspection and the Claimant herself) would take. I have indicated the area it would cover and, if oral evidence is given, I would propose to ensure that it is confined to that area.

[19]Bearing in mind that this suggestion of cross-examination has been “in play” since the Claimant’s Response dated 9 February (see paragraph 2(a) above), I imagine some preliminary consideration has been given to the practical implications if a specific application to receive oral evidence is made and granted. At all events, I must have some assistance from the parties on this issue as a matter of urgency. This communication reflects my current thinking on this particular question. 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

APPENDIX 2

[1]As indicated in the main text of the judgment (see paragraph 43), I have decided to put my views in relation to these matters in an Appendix rather than taking space within the main judgment. I emphasise that this is in no sense to be taken as diminishing their importance: far from it. It is merely a more convenient way of dealing with them.

[2]The history of what happened is set out in paragraphs 19-22 of the main judgment and I will not repeat it.

[3]Equally, I do no want to extend the judgment overall with lengthy citations from the authorities in which the courts have made clear the importance of the duty of candour in judicial review proceedings. They will be familiar to all who practise in this field. However, since this judgment may be read by those without knowledge of legal practice I will use the words from two cases to illustrate the approach.

[4]I should say, first of all, that there is, as Mr Ward has submitted in his Reply to Mr Maurici’s submissions on the fresh disclosure of Ofsted, a distinction between the duty of candour and a duty of disclosure. In the very broadest sense, the latter duty is to a large extent unnecessary if the former is fulfilled to its fullest extent. This is illustrated by the following observation of Laws LJ in Secretary of State for Foreign and Commonwealth Affairs v Quark Fishing Limited

[2002] EWCA Civ 1409

“… 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.”

[5]It is, therefore, right to say that the two duties do have to be distinguished. However, quite frequently, as indeed in this case, the duty of candour is discharged, at least in part, by the disclosure of documents. In Tweed v Parades Commission for Northern Ireland

[2007] 1 AC 650

Lord Bingham of Cornhill said this:

“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 ….”

[6]In a document entitled ‘GUIDANCE ON DISCHARGING THE DUTY OF CANDOUR and DISCLOSURE IN JUDICIAL REVIEW PROCEEDINGS’, prepared by the Treasury Solicitor in January this year (largely, as I understand it, to address concerns about the disclosure of documents that arose in Al-Sweady & Ors (R on the application of) v Secretary of State for the Defence, to which I referred in paragraph 42 above) the following two paragraphs appear under the general rubric of ‘The duty of candour’:• 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. …

[7]The same document contains this paragraph:• 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.

[8]As will be well-known by those who have interested themselves in this case, after the hearing in October last year further documents were discovered by Ofsted. I was told that a new in-house Ofsted lawyer who was seeking information in relation to a Freedom of Information Act request discovered Ms Ryan’s handwritten notes and matters proceeded from there. I have not been told who the in-house lawyer was, but I should like to single her out for praise for spotting the potential importance of the documents and doing exactly the right thing in bringing the matter to the attention of the legal team representing Ofsted in these proceedings. When the full implications were appreciated by the legal team, the matter was brought to my attention. Again, that was absolutely the right thing to do no matter how embarrassing it may have been or costly in terms of time or money.

[9]What came to light following that discovery and before the hearing that took place on 10 November 2009 was that there were the following documents or sources of documentation that were arguably relevant to the issues in the case and which ought to have been considered by Ofsted in ensuring that duty of candour had been discharged: 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.

[10]That material was provided to the other parties shortly after the hearing on 10 November and I will make further reference to it below. At that hearing I wanted to know more about the background to the availability of these documents and about how they came to light. I also wanted to know why the Claimant’s requests for drafts of the report had been responded to in the way that they were. The relevant part of the order that I made on that day was as follows: 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).

[11]I also gave Ofsted a further 14 days to check that there was nothing else that needed to be disclosed. In due course, a witness statement from Ms Lorraine Brooke-Langham dated 25 November was produced, designed to comply with my order. I will be returning to aspects of that in due course. However, it should be noted that some further documents had come to light in the meantime which were disclosed at the same time as the witness statement was provided, those documents including the material relating to the presentations to which I referred in paragraph 486 above.

[12]In Ms Ryan’s notes there appeared a handwritten note relating to a meeting within Ofsted on 18 November 2008 (which was the second day of the fieldwork exercise) in which it appeared that an instruction had been given by Mr Pullen that e-mails relating to “Baby P or Haringey” should be deleted from “the system”. In my Interim Ruling on the press application for release of certain documents, I indicated that I wanted an explanation for this. That explanation was provided in a series of witness statements supplied later to which I will refer shortly.

[13]A broad overview of what emerged from this particular process appears to be that the bulk of the “new” documentation emanated from Mr Pullen and the electronic files that he had previously overlooked. Ms Ryan had, as I understand it, made her notes available and yet their full significance had not been appreciated. There was an issue about whether Mr Hart’s e-mail had previously been disclosed or not, though the ultimate position appears to be that it had not been disclosed. I am not sure that it matters greatly, though it is not a very edifying spectacle for this kind of issue to swing from one side to the other.

[14]Ignoring, for the moment, Mr Pullen’s explanation for the late emergence of the documentation that was in his control or possession, I cannot avoid observing that he has revealed some documentation that must have been in the control or possession of some of the other Ofsted personnel and yet that documentation has not emerged from them. Unless I have overlooked something in the welter of argumentation about the additional disclosure, it was Mr Pullen, not Ms Brown, who revealed the memorandum that she prepared about the circumstances of the inspection that I quoted fully in paragraph 487 above. It is, of course, Mr Pullen who has, albeit in circumstances that raise questions (see below), produced the sequence of the emerging drafts of the report. It is very difficult to understand why others in the team were not able to produce drafts even accepting, as I do, that there may have been no particular reason for all members of the team to retain every version of the draft on his or her laptop once the inspection was complete and the report had been finalised. However, for the purposes of evaluating to what extent, if any, the emerging drafts assist on one of the issues I have had to consider in the case, the important thing is that those drafts have been revealed. For reasons which I will give later, I am still unclear as to how it was that the specific questions raised on the Claimant’s behalf about these drafts were answered in the varying ways to which I referred at the hearing on 10 November.

[15]It will be appreciated that I have made reference to a number of the documents disclosed in this process in the substantive part of the judgment. I also indicated in Section 4 how I have approached the evaluation of the witness statements given the unsatisfactory nature of the way certain matters have been revealed during the course of the proceedings. I indicated in paragraph 43 that I could not accept Mr Maurici’s submission that I should presume everything against Ofsted because of what he submitted represented the destruction of evidence. I propose to give my reasons for that shortly, but before doing so I will need to review the evidence given about the instruction to delete e-mails which represents an important background to Mr Maurici’s submission. Not unnaturally, it is a matter that has caused me considerable concern particularly against the background of the unsatisfactory way in which the issue of the duty of candour on the part of Ofsted has been handled.

[16]As will become apparent when I review the evidence, it is not disputed that the instruction was given initially, but equally it is said that it was countermanded very shortly afterwards after further reflection and that there has been no wholesale deletion of e-mails as a result of the very short-lived instruction.

[17]The note on Ms Ryan’s handwritten notes was as follows:

"2. Major issue from Phil any e-ms on system. Baby P or Haringey are deleted. URGENT!"

URGENT!"

[18]As I have indicated, Mr Pullen accepts that this instruction was given, but says that it was quickly countermanded thereafter. In fairness to him, I should set out what he has said. In relation to the giving of the instruction he said this in his witness statement of 16 December 2009: 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.

[19]He then speaks of various conversations with colleagues and said that in consequence he - "... 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 ...."

[20]He then indicated how the “second thoughts” came about and the steps he took thereafter in this way:

"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."

[21]Mr Pullen says that the instruction when given had nothing to do with any actual or contemplated Freedom of Information Act requests.

[22]Mr Maurici has analysed Mr Pullen’s account in considerable detail and compared it with the accounts of those of his colleagues who have given witness statements on the matter, namely, Mr Shippam, Ms Brown, Ms Ryan and Mr Hart, and suggests that there are discrepancies. Mr Ward has argued strongly to the contrary. If I am being invited to reject the general thrust of Mr Pullen's account in this respect I am unable to do so. Leaving to one side the fact that I have not heard him give evidence and be challenged about his account, the chances are that those involved in this apparently short-lived episode in November 2008 will have some difficulties recalling the precise sequence of events in November or December 2009 and to that extent some differences at the margins can be anticipated. I have not detected any major discrepancies. But irrespective of any view that might be formed about that, it does seem to me that the debate does not advance Mr Maurici's case. As I observed in my Interim Ruling when mentioning this issue, the fact is that a large number of internal e-mails both before and after 18 November have been disclosed and, whilst I am sure there are some gaps, the question is whether they are significant and whether those gaps are likely to distort the picture to be distilled from all the material available. I do not think that that is so.

[23]If the evidence demonstrated that, as the result of Mr Pullen's initial instruction, a large number of potentially highly material electronic communications were erased from the records, then I would accept that it would represent a very serious state of affairs. However, the preponderance of the evidence before me does not suggest that that occurred. There is no doubt that some members of the Ofsted team were surprised by Mr Pullen's instruction and regarded it as unprecedented. I suspect that it was. But this was a highly unusual inspection conducted against the background of intense press and media interest and where there had been some evidence of members of the press gaining entry to child protection meetings. It is not difficult to see why an unusual and unprecedented step was taken. It may not have been wise, and indeed wiser counsels prevailed, but it is at least possible to see why Mr Pullen felt he had to do something. Unless the situation has been wholly misrepresented in the statements put before me, I do not think I could possibly conclude that material evidence has gone missing, still less that any that has gone missing went missing because of fear of disclosure in these proceedings. These proceedings were in no-one's contemplation at that time.

[24]Mr Maurici makes the fair point that there is no contemporaneous documentary evidence to support the assertion that the instruction was countermanded. However, it is equally to be observed that, apart from Ms Ryan's note, there is no contemporaneous documentary evidence to demonstrate that the instruction was given. If everyone was focusing on not keeping certain records, it is not difficult to see why there may be no record of the sort that Mr Maurici suggests ought to have been evident.

[25]As I indicated in the substantive judgment (paragraph 43), Mr Maurici sought to invoke the principle reflected in the Latin expression omnia praesumuntur contra spoliatorem (everything is to be presumed against the destroyer of evidence) and placed some reliance on this aspect of Ofsted’s corporate behaviour in support. He will, I trust, forgive me if I do not embark on a lengthy analysis of the authorities. Mr Ward drew my attention to IS Innovative Software Ltd v Robert Howes

[2004] EWCA Civ 275

where Neuberger LJ, as he then was, said this at paragraph 100:

“…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.” “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.”

[26]Since there is no basis for saying that the instruction was intended to frustrate or impede the Claimant’s claim I can see no room for invoking the presumption.

[27]Mr Maurici does, however, draw attention to the fact that a good many electronic versions of documents must have been erased or deleted after the end of the inspection and before these judicial review proceedings were commenced in April 2009. As a matter of fact, that must be correct. Only Mr Pullen appears to have retained any electronic versions of the emerging drafts, yet these drafts plainly went back and forth through the inspection team and those, like Mr Pullen and others, who were either “quality assuring” what was emerging or contributing to the drafting depending on what view is formed about what each person did. None of the others has been able to produce an electronic version of any draft – and indeed the “hard” versions of the drafts available were, as I understand it, limited to those that emerged near the very end of the drafting process and were taken to the Secretary of State on 1 December. This might seem strange. On the other hand, there is nothing intrinsically suspicious about enhancing the memory capacity of a PC by deleting documents when they no longer seem relevant to the task in hand.

[28]At all events, whilst I am surprised that there has only been one source of this material (Mr Pullen), the bottom line is that it has been possible for the Claimant’s advisers to analyse the way the final version of the report came into being through the drafting process. I do not think in the end that the Claimant has been prejudiced by the fact that other members of the team have not produced (or did not retain) electronic versions of the emerging report. Mr Maurici has been able to make detailed submissions by reference to the drafting process on the issue that matters (namely, the extent to which the concerns of the inspectors were discussed with the Claimant during the inspection), some of which I have accepted, others of which I have not.

[29]Mr Maurici again makes a fair point when he says that none of the witnesses has said when they deleted these various documents. Obviously, if it was done when the Claimant’s judicial review proceedings were commenced (or even, perhaps, were simply anticipated), that would be a potentially serious matter and might have given rise to the invocation of the presumption to which I have referred above (see paragraph 25). However, since the history (or, as it seems to me, a very substantial part of the history) has now been traced, all this seems rather academic and I do not think I need pursue it further for the purposes of evaluating the evidence in the case.

[30]However, that does not mean that I am entirely satisfied with the explanations I have been given about how the Claimant’s requests for the disclosure of this material were answered. In my view, there remain some unanswered questions that, whilst I do not think that they can affect my overall conclusion in the case, I propose to follow up after this judgment has been delivered. I will indicate briefly my concerns. A little narrative is required in the first instance.

[31]In his third witness statement (dated 17 November 2009 and made in response to my order of 11 November) Mr Pullen indicates that as long ago as 18 March 2009 he was asked to retain and begin gathering together any relevant documentation relating to the inspection and report including the RoE, any handwritten notes that had been kept, any internal or external briefing notes, submissions and e-mail traffic relating to the report, including e-mails and telephone notes between the DCSF and Ofsted and Haringey. On 13 May 2009 he said that he was asked to identify all communications between Ofsted, the DCSF and Haringey between 1 November 2008 and 1 December 2008. On 28 August 2009 he said was sent a copy of the Claimant's request of 21 August for specific disclosure and further information. That request included the following: 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.

[32]In relation to that specific request he indicated that he had not retained any drafts of the JAR Report. There were in existence the drafts taken to the meeting with the Secretary of State on 1 December. All the other Ofsted personnel consulted said that they had no drafts of the report.

[33]Although the indication from Ofsted was that no-one had retained any other drafts, the reply from the Treasury Solicitor to request 13, sent on 8 September, was as follows: 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.

[34]On 21 September 2009 the Claimant’s solicitors repeated request 13 giving as the reason for pursuing it the following: 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)

[35]Although the Claimant's solicitors have subsequently produced evidence showing that the letter was delivered by courier with the Hearing Bundles and signed for by the Treasury Solicitor, it is said that it was not received by the Treasury Solicitor. Consequently, the matter was not pursued further by the Treasury Solicitor with Ofsted. Indeed it was not until effectively after the hearing that the matter was pursued further when the Claimant's solicitors, in a letter dated 12 October, asked for "a copy of the successive drafts of the 2008 JAR report". The letter made other requests, but the answer to this particular request was: We are instructed that Ofsted has been unable to locate any further drafts.

[36]The use of the word "further" meant drafts beyond those taken to the meeting with the Secretary of State on 1 December.

[37]The basis for that answer was Mr Pullen's confirmation that no other drafts (i.e. other than the one that was taken to the meeting on 1 December) were available. He said that he responded the same day confirming that he did not have any copies of earlier drafts of the JAR report. He has said that he did not re-check any data sources at the time because he had no reason at to believe that he had previously overlooked anything.

[38]That is where matters lay until the discovery of the extent of Ms Ryan's notes resulted in inquiries within Ofsted to see if there were any further documents that had not been revealed that ought to have been revealed.

[39]It appears that on 4 and 5 November (the latter being the day I had indicated informally to Counsel that I hoped to be able to hand the judgment down the following week) Mr Pullen discovered the documents that have since been disclosed. He has said that on 4 November he looked in the 'My Documents' folder on his laptop and found a sub-folder within a folder entitled 'Haringey Review' containing copies of e-mails that he had gathered together for the purposes of a Freedom of Information request. He printed these e-mails off and gave them to Ofsted's legal team that day. He also searched his network e-mails and discovered a folder in Microsoft Outlook called 'Haringey Review' containing around 250 e-mails. They were all e-mails, he said, that he had received from other people and so knew that some of them may already have been disclosed by the senders. However, he said that he does not know how he also overlooked this sub-folder previously.He found in this sub-folder a number of e-mails which contained draft copies of the JAR inspection report. As he was aware that he had been asked if copies of drafts existed at an earlier stage in the proceedings he realized, he said, that the e-mails would need to be disclosed urgently to the legal team which is what he did.

[40]That then is the story behind the discovery of the drafts leading to the final emergence of the draft report, plus certain other documents. Mr Pullen has apologised unreservedly for overlooking these matters and, of course, for being unintentionally responsible for giving the Claimant's solicitors misleading answers about the existence of the drafts. His apology must, of course, be accepted and I fully accept that he is a very busy man. However, the story is hardly a satisfactory one and it raises the question of how vigorous were the efforts, both by the Ofsted team and the legal team, to look for documentation that was plainly present on his laptop. Mr Maurici is right to say that this discovery did not require any sophisticated retrieval by computer experts. Presumably, typing in the word 'Haringey' in the general search facility would probably have revealed the folders or the documents.

[41]I cannot take the matter much further for the purposes of this judgment. The documents have now been revealed and deployed in the proceedings. However, I am proposing to raise with the Treasury Solicitor personally the question of whether he is satisfied that proper efforts were made to obtain all documents from Ofsted for the purposes of discharging its duty of candour. I will want to know to what extent Ms Ryan’s notes, which as Deputy Lead Inspector would inevitably throw some light on the way the inspection progressed, were analysed by the legal team. It was, of course, only when those notes were looked at in detail that Mr Pullen’s instruction to delete e-mails emerged. I should like to know why the letter of 8 September (paragraph 33 above) was phrased in the way it was bearing in mind that at that stage the instructions from Ofsted were that no drafts of the report had been retained other than the one taken to the meeting with the meetings on 1 December 2008. Furthermore, I will want to know how it was that the letter from the Claimant's solicitors of 21 September went missing. Since each of these matters might raise issues of legal professional privilege, I may have to consider to what extent any reply I receive in relation to these matters can be published. However, it is right that I should record that I propose to follow this matter up along the lines indicated.

[42]It is difficult for me to determine where the true responsibility lies for the wholly inadequate way in which Ofsted’s duty of candour was addressed initially in this case. At the end of the day, it has to represent a collective failure that, frankly, shakes one’s confidence that the scope of the duty was fully understood by those involved. It appears now to have been rectified, but at some considerable cost, not merely financially, but by way of increasing the anxieties and pressures on the Claimant and delaying the outcome of a case that is of widespread interest. It should not have happened.

Cited in 1 later judgment

Shoesmith, R (on the application of) v OFSTED & Ors 2011