AB & Anor, R (on the application of) v The London Borough of Haringey [2013] EWHC 416 (Admin)

[2013] EWHC 416 (Admin)Case No CO/7304/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13 March 2013
Before
HH Judge Anthony Thornton
The Queen on the application of
Between
(1) ABClaimants(2) CDClaimant
Eleanor Grey QC (instructed by Celtic Knot Solicitors) for ClaimantsBryan McGuire QC (instructed by London Borough of Haringey Legal Services) for DefendantHearing Hearing dates: 17 October, 28 and 29 November 2012
JUDGMENT

HH Judge Anthony Thornton QC:

[1]In this case, the female claimant (“AB”) and the male claimant, “CD”, seek a judicial review of a decision of the defendant, the London Borough of Haringey (“LBH”), to undertake an enquiry pursuant to section 47 of the Children Act 1989 (“the section 47 enquiry”) into whether the claimants’ child (“EF”), who was then aged 6 years 7 months, was suffering or was likely to suffer significant harm. This decision was taken by an appropriately qualified officer, Ms Sylvia Chew, LBH’s Head of Service for First Response, on 5 May 2011 but the only indication that it had been taken is her statement that “this department will be undertaking a Section 47 investigation in relation to your child” in a letter she sent to AB and CD on 5 May 2011. This judicial review is, therefore, concerned with whether a decision was taken and, if it was, whether that decision should be set aside as being unlawful, unreasonable or irrational.[2]The claim was filed on 1 August 2011. The permission application was ordered to take place in open court and permission was granted by Wilkie J on 15 March 2012. The original hearing date was 17 October 2012. I heard and dealt with an application by each counsel for an anonymity order which I granted until the adjourned hearing of the claim. I then adjourned the hearing to enable the parties to seek to settle the claim by ADR measures. This attempt failed to achieve a settlement and the adjourned hearing took place over two days on 27 and 28 November 2012 Anonymity[3]Ms Eleanor Grey QC, counsel for AB and CD, applied for an anonymity order so as to protect the anonymity of EF. The court’s power to grant a party anonymity is governed by CPR 39.2(4)and in the exercise of its inherent powers in order to pay due respect to the private life of this child that is required by section 6 of the Human Rights Act 1998 and article 8(1) of European Convention of Human Rights. In considering this application, I have had in mind the authoritative guidance as to the applicable principles that I should have in mind in deciding whether to grant an anonymity order are set out in the decision of the House of Lords in In re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593, HL(E). http://www.bailii.org/cgi-bin/redirect.cgi?path=/uk/cases/UKHL/2004/47.htmland of the Supreme Court in Guardian News and Media & Ors, Re HM Treasury v Ahmed & Ors [2010] UKSC 1, SC. .[4]This case involves a detailed consideration of matters concerning the intimate details of EF’s private and family life. It would not therefore be in her best interests for her identity to be made public. It would also not be in the public interest for the hearing to be in private or for the judgment to remain unpublished. I have therefore directed that the name of the claimants and their child should be anonymised and that the details of this case should not be published so as to reveal their names or identities. I am directing that the names of the claimants should be anonymised because their publication will enable EF’s identity to be known even if it is anonymised. The legal framework[5]This case involves a consideration of whether the defendant local authority lawfully decided that a section 47 enquiry should take place to ascertain whether the two claimants’ daughter was suffering or was likely to suffer significant harm.[6]Section 47 of the Children Act 1989, in Part 5 of the Act entitled Child Protection, provides as follows:
“47 Local authority’s duty to investigate. (1) Where a local authority— … (a) are informed that a child who lives, or is found, in their area— (b) have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm, the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare ... .” (1) Where a local authority— … (a) are informed that a child who lives, or is found, in their area— (b) have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm, the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare ... .”
[7]Section 47 enquiries are one of the principal measures available to a local authority to enable it to exercise its child protection functions to protect children who are at risk of suffering or are suffering significant harm whether it be physical, emotional or psychological harm. Such harm and such risks are often very difficult to ascertain and root out and the purpose of section 47 is to provide a readily available means whereby a local authority can ascertain the facts and risks that a child is running and then to identify and implement necessary protective, supportive and developmental measures to safeguard and to promote that child’s welfare. The objective of a section 47 enquiry is to protect children who are suffering from or are threatened with significant harm and the threshold for its operation in any given case is the need for the local authority concerned to have reasonable cause to suspect that that child is suffering or is likely to suffer significant harm.[8]The use of section 47 and the measures that may be taken by a local authority following its use are predominantly aimed at securing the best interests of children. Its use is intended to be child-focused and to take account of the child’s views and wishes without unduly and unfairly disrupting her family life. The use of section 47 should also take account of the personal and family rights of a child’s parents or carers so long as that does not interfere with the overriding duty of child protection and development.[9]Section 47 enquiries are multi-agency in their scope and they will usually include such agencies as the child’s school, medical practitioner, social workers and the police. The police have an important role to play given the likelihood that in most cases where a child is suffering or is at risk of suffering significant harm, the perpetrator or perpetrators of that risk or that harm will have committed or will still be committing serious criminal offences whose victim is a child.[10]A section 47 enquiry involves an in-depth child-centred assessment of a child’s developmental needs, of the harm she is suffering or may suffer, of the capacity of the child’s parents or carers to respond to the child’s needs and of the family and environmental factors that are playing a role in the harm she is suffering or may suffer. This intrusive assessment should take account of the views of the different agencies involved with and the external influences on the child and it must also directly involve both the parents and the child unless this will endanger the child. The necessary fact-gathering should include sessions with the child without her parents or carers present and it should ascertain that child’s wishes and aspirations wherever possible. The assessment, known as a core assessment, must be concluded so that a holistic view may be taken of the child’s needs, of the significant harm that the child is being or is at risk of being subjected to and the steps that can be implemented for the eradication of negative influences on the child and the promotion of favourable ones on her.[11]A section 47 enquiry has in recent years become very damaging for the life, career and family relationships of many who are parenting or caring for the child being assessed. There are now extensive statutory checks that must be made about adults who are caring for or working with children or who are coming into contact with them in an educational, health, pastoral or care context. Thus, involvement in a section 47 enquiry may often result in the ending of a career involving contact with children. This will usually be for good reason but this is not always so and there will rarely be a means for those unfairly marked out by involvement in a section 47 enquiry to eradicate that stain on their professional and personal reputation.[12]A section 47 enquiry can of course prove to be very damaging for a child, for her parents and for their mutual relationships. In particular, the lives of parents can be badly affected if and when adverse conclusions are made about the harm that they have inflicted on their child. These can include criminal prosecution, the loss or their child, intrusive involvement in their family and private lives, loss of employment or being barred from working with children and an adverse entry on their records held by reporting authorities such as the police and various regulatory bodies. A particular trigger for any of these adverse effects is the fact that a section 47 enquiry was undertaken in relation to their child at all since its threshold is that significant harm has occurred or that there is a risk of it occurring. Thus, a section 47 enquiry, which will often be reportable by the parents concerned, can blight their lives irrespective of the nature and extent of the significant harm or of their involvement in it or of the reasonableness of the suspicion that generated the enquiry in the first place.[13]For all these reasons, the simple and apparently straightforward terms of section 47 mask a myriad of problems and to help deal with these, a plethora of rules, procedures and guidance have been produced. These are largely found in the statutory guidance issued by the Department for Children, Schools and Families and by statutory authorities such as the London Safeguarding Board. Statutory guidance is issued with statutory authority and it must therefore be complied with unless local circumstances indicate exceptional reasons to justify a departure from it in a specific case. This body of guidance is intended, if followed, to enable the very difficult decisions and exercises of professional judgment to be made satisfactorily on a case by case basis. These judgments are taken so that the substantial harm affecting the child may be investigated, her best interests may be protected and the rights of parents and carers are taken into account.[14]In particular, the guidance sets out detailed decision-making procedures that must be followed save in exceptional circumstances. These procedures particularly cover the assessment process and how it should be carried out. A common assessment framework or CAF has been devised which is intended to guide and focus the many different types of assessment of children that are available in a structured way. This structured decision-making to enables the wide variety of data to be assembled and built into the decision-making process so as to enable the child’s development needs, the parents or carer’s capacity to respond appropriately to those needs and the wider family and environmental factors to be identified and addressed in any future working with the child and her parents, family and other carers.[15]For section 47 enquiries, three distinct phases of assessment are provided for, being the screening assessment, the initial assessment and the core assessment. These three phases are geared to the referral nature of a local authority’s Children and Young Person’s Service (“CYPS”) and its need to undertake child protection work in conjunction with the many other agencies involved. A CYPS will take referrals from social services, from external agencies and from concerned members of the public. These referrals will contain limited details of the children who are considered to be at risk of significant harm. Most, but not all, of these referrals will be from identified people who can provide a primary source of information. Regrettably, a small but significant number of referrals are from anonymous sources and, even more regrettably, some of those references are maliciously motivated or fabricated.[16]On referral, the CYPS will initially screen the referral and sift out the relatively few referrals that are clearly not ones that will reach the relatively high threshold of a section 47 enquiry. Those that remain are then subjected to an initial assessment which is intended to be completed within 10 working days of the receipt of the referral and, crucially, to include input from both the child and her parents or carers. The decision to initiate a statutory section 47 enquiry is taken following this initial assessment by a strategy meeting held with relevant interested representatives of social services and external agencies such as the police, GPs and other medical personnel, schools, carers and, in appropriate cases, more specialised individuals. If a section 47 enquiry is decided upon, it is undertaken by conducting a core assessment using the CAF, the input of all relevant professionals and, of course the input of the child and her parents or carers. This enquiry is intended to be completed within 42 days of the referral which should include the ten working days of the initial assessment.[17]It is important to keep in mind the different objectives of the initial assessment and the core assessment processes. The objective of the initial assessment is to ascertain whether the child is in need and whether the threshold for a section 47 enquiry exists. This requires considering whether there is reasonable cause to suspect whether the child is suffering or is likely to suffer from significant harm. The assessment process must include, so far as is consistent with the child’s safety, the child being seen and her views being taken into account if the child is old enough to express them. It must also include the involvement of appropriate agencies and a decision to proceed taken after full discussion at a strategy meeting.[18]The relevant service has a statutory duty to initiate a section 47 enquiry but only if it has decided that it has reasonable cause to suspect that the child is suffering significant harm or is at risk of suffering such harm. That reasonable suspicion must arise in and be tested by the initial assessment process which may only be short-circuited in exceptional circumstances. The objectives of the resulting core section 47 enquiry are essentially to determine what is likely to happen if nothing changes in the child’s present situation and what the likely consequences for the child are.[19]In considering this claim for a judicial review of a CYPS decision to initiate a section 47 enquiry, I have taken account of this essential background since the difficult factual question of whether such a decision was ever taken and the equally difficult question of whether the decision, if made, was within the decision-maker’s margin of appreciation can only be answered against that background. The Facts in Outline (1). The parties[20]AB and CD are both experienced qualified social workers. AB is not registered since she works on her own account as a child protection trainer and consultant. CD works for another London Borough as a senior registered practitioner who also works in the field of child protection. These facts only became known to LBH when two practitioners contacted AB and CD by phone on 4 May 2011 about an anonymous referral from a member of the public about their child.[21]LBH undertakes its statutory duties in relation to children and young people through its Children and Young People’s Service (“CYPS”). The Service for First Response (“SFR”), which is located within that Service, is responsible for LBH’s front-line child protection work. Ms Chew is the Head of SFR and has senior management responsibility for it. Management is discharged through senior managers who, in turn, discharge their management functions through team managers and practice managers. SFR’s primary responsibility is to take the lead in the multi-agency screening of all contacts and referrals from both professionals and the public concerning the welfare and protection of children and young people. This responsibility is discharged through its four duty social work teams who assess and support families who have met the threshold for intervention, a specialist service that works with families who have no recourse to public funds and an out-of-hours emergency duty team. Day-to-day management and decision-making within each team lies with the team managers who manage the work of the practice managers, social workers and trainees allocated to their team.[22]All professionals working within SFR are trained and are expected to work within the auspices of the Children Act 1989, the statutory guidance contained in Working Together to Safeguard Children and the local level guidance provided the London Safeguarding Board’s Children Board’s Child Protection Procedures which aims to promote consistency between London Authorities. They also have to work with the internal guidance provided by LBH’s Thresholds of Need and Service Responses: Guidance for Staff. In addition, they must work with a plethora of further statutory, non-statutory and local guidance documents, practices and procedures. The First Response’s professionals’ tasks are made even more difficult by the frequent changes and additions to the large amount of statutory guidance and advice that must be followed. Working Together to Safeguard Children(2010) published by the Department for Children, Schools and Families,the fourth edition of London Child Protection Procedures was published in April 2011 with a new edition soon to be published. Other relevant guidance is contained in the Department’s: Framework for the assessment of children in need and their families and Assessing children in need and their families: Practice guidance (2000) and LBH’s Thresholds of need and service responses: Guidance for staff.[23]There is no doubt that SFR, working as it does within a London Borough where there is a high level of social need, has a daunting and difficult role to fulfil and its professionals are regularly working with professional expertise under considerable pressure and with limited resources. SFR was receiving in 2012 an average of 650 contacts a month of which about 35% progressed to social work assessment. I was informed during the hearing that it was embarking upon about 8 to 10 new section 47 enquiries each week. (2). LBH’s management structure[24]The Director of CYPS was Mr Peter Lewis and the Head of Service of SFR was Ms Sylvia Chew. She had qualified as a Social Worker in 1999 and had been working in the field of children and families since qualifying. She had been working as a social worker with LBH since September 2004 and was appointed Head of Service of SFR in May 2009. Her Deputy Head of Service was Ms Chrissey Austin who was the manager of the Team Managers. This case had been allocated to SFR’s First Response Team (“FRT1”) whose Manager was Mr Jeffrey Baker. He had qualified in 2001, had worked with children and families since qualifying and had been a manager for LBH since January 2011. He had a number of Practice Managers, social workers and trainee social workers working with him under his management in FRT1. Having decided that this case would be subject to an initial assessment, he first allocated a trainee social worker to it, initially to complete agency checks to identify who lived at the address that the anonymous referral had identified as the home of the child in question. Mr Baker re-referred the case to one of his Practice Managers, Ms Katherine Mawdsley, after the contents of the first call to AB and CD were reported back to him by the trainee.[25]The London Safeguarding Children Board guidance document contained detailed guidance as to how SFR should deal with referrals involving an allegation or concern that a person working with children in connection with their employment or voluntary activity had behaved in a way that had harmed a child or may have harmed a child, had possibly committed a criminal offence against or related to a child or had behaved towards a child in a way that indicated that they are unsuitable to work with children London Safeguarding Board guidance: Paragraph 15.1.2. . The guidance also advised that an officer or officers should be designated to be involved in the management and oversight of cases on an individual basis and a senior manager to whom such allegations or concerns should be reported to. This latter is the Local Authority Designated Officer or LADO. The CYPS had appointed Ms Murray as LBH’s LADO.[26]The guidance also envisaged that CYPS in the case of each referral involving allegations against those working with children would apply the protocol with the Metropolitan Police covering working practices between a CYPS and the relevant police Child Abuse Investigation Team (“CAIT”). Police involvement in such referrals would almost always be required since most well-founded allegations involving people working with children would involve the commission of a serious criminal offence or the need to investigate the possibility that such a criminal offence may have been committed. The guidance advised that the LADO should immediately inform the police and convene an initial evaluation on receipt of a well-founded referral. This evaluation was described as being similar to a strategy meeting or discussion and was to include the police, employer, and other agencies involved with the child. The guidance advised that the police should always nominate an officer of Detective Sergeant rank from the relevant CAIT to liaise with the local authority concerned in any case involving such referrals.[27]Within SFR, the decision to make a referral to the LADO had to be made by the Head of Service or Deputy Head of Service wherever possible. The referral in this case was made by the Head of Service, Ms Chew, following her meeting with Mr Baker on 4 May and the Deputy Head of Service, Ms Austin, liaised with the police and set up an initial strategy meeting with the LADO and the police for 6 May. Mr Baker, as the relevant team and case manager, had two separate telephone strategy meetings on 6 May, the first with the LADO and the second with the DI assigned to this reference.[28]Overall, therefore, the initial assessment and other involvement in this case was undertaken by Mr Baker as the manager and Ms Mawdsley working under his management as the practice manager. Mr Baker had authority to take all relevant decisions except the decision to refer the allegations to the LADO and it was because of the need to obtain the Deputy Head of Service’s approval to make a LADO reference that he sought her out. Ms Austin was also his manager but she was not available during the afternoon of 4 May when he first discovered the status of AB and CD so he correctly followed procedure by going to see the Head of Service, Ms Chew who made the LADO referral decision. The critical question in this case is whether she also overrode Mr Baker and Ms Mawdsley who were still in the throes of an initial assessment by directing that that assessment process should cease forthwith and be replaced by a section 47 enquiry with immediate effect. (3). Factual background[29]Each case is received within SFR on referral from LBH social services, from other agencies or from the public. Each reference is initially filed on FWi, being the computerised file recording system used by SFR which any professional or other authorised team member involved in that reference has access to. The principal documents retained on the file for EF’s reference were her Personal Details, her Case Notes in which all day-to-day actions were logged by the person responsible, completed LBH templates recording the details of significant stages of the referral and correspondence and communications with other agencies and the family. It is, therefore, possible to ascertain the detail and to follow the detailed progress of this case from SFR’s first receipt of the anonymous referral on 15 April 2011 to the closing of the case on 11 May 2011.[30]An unsigned letter dated 11 March 2011 addressed to LBH’s “Social Services Child abuse Department” was received by SFR on 15 April 2011. There is no record of when it was sent by the anonymous author or first received by LBH. The letter read:
“Dear Social Workers Worried about the family living at [full postal address given]. I am a neighbour of the family living at the above address and I have some very big worries about how they are looking after the young girl in the house. I think the little girl is about 7 years old and there (sic) girl. The mother is always screaming at the little girl shouting and screaming. I have seen the mother pulling the little girl along by her arm and slapping her. The little girl looks so unhappy she is not allowed to speak to anyone and when you see her in the street the little girl looks very sad and never raises her head to look at you. There is often shouting late at night from the house. The man in the house is much older and could be granddad or a lodger. I am worried to talk to the family because they don’t speak but I know they have been rude to other people in the street. Please could you make sure that the little girl is alright.”
[31]The letter was passed to the SFR screening team which ascertained the name of the child and made background enquiries that showed that EF had not come to the attention of the police. On 26 April 2011, the screening team sent an information request form to EF’s GP without first obtaining AB or CD’s consent This is provided for in paragraph 6.5.10 of the London Safeguarding guidance which advises that the parents’ consent should be sought before discussing a referral about a child with other agencies such as the child’s GP or school. . The form stated that SFR was currently working with the family named in the form which had been referred by a member of the public reporting emotional and physical abuse. It sought information about the child’s health history and any on-going needs and the provision of possible abuse risk indicators to assist in answering the query.[32]EF’s GP telephoned SFR somewhat perturbed that the request form had not been signed by one of the child’s parents. He was informed by the team member who took the call that, at that stage, all that was asked for was EF’s parents’ names and contact numbers and whether the GP had any concerns about the child. The GP advised the team member that the family were well known to him and that he had no concerns. The screening team also wrote brief notes on RIO The relevant Health Authority’s Patients Healthcare Records system that allows healthcare professionals to share a patient’s healthcare records. , presumably to the effect that an anonymous referral had been received concerning physical abuse of the child, and emailed the nurse at EF’s school and asked whether the school had any further information to add. There was no answer from the school which is not surprising since the parents’ consent to make these inquiries had not been previously been obtained. The screening team was, however, able to obtain no fewer than 3 mobile and one landline telephone numbers for the family from EF’s school and was also informed that she was not known to Social Services.[33]The screening team decided to refer the case to the First Response Team 1 (FRT1) on 28 April 2011 and Mr Baker, one of the FRT1 managers, having considered the referral, decided that it should be given an initial assessment because of its concerning content, because there was no further information that could be gleaned from the person making the referral and there was also a lack of information about the child. His evidence was that he was still satisfied that the referral met the appropriate threshold for initiating an initial assessment. He opened an initial assessment template and recorded that the referral date was 28 April 2011. He then allocated the case to a student social worker member of the team, Mr Mamattah, and tasked him to arrange a visit to the family, to inform the child’s parents about the referral, to request permission from them to speak to EF alone and to undertake background checks with other agencies. These preliminary steps had to be taken before it would be possible for the necessary initial assessment to start. It appears that his background checks included his obtaining from or with the assistance of LBH’s education section the four contact phone numbers that AB had left with the school for it to contact in an emergency. These included her land line and mobile number and the land line number of her sister and a trusted albeit elderly neighbour.[34]At about 2.00pm, Mr Mamattah telephoned one of the mobile numbers that he had been told were those of the child’s parents. This was the first contact that SPR had had with the family. At that moment, CD was driving AB and himself back from a visit to his father and, having stopped the car at the side of the road, he answered the call at about 2.00pm. Mr Mamattah explained who he was and then he told CD that he was calling about an anonymous referral that SPR had received about his daughter. CD then informed Mr Mamattah, according to Mr Mamattah’s logged note, that his wife was a social worker Head of Service at another London council, that he was flabbergasted and that Mr Mamattah should speak with AB. Mr Mamattah must have been mistaken in recollecting that this piece of information had been given to him by CD since CD was a senior practitioner whereas AB was a self-employed consultant working in the field of child protection.[35]CD then handed the phone to AB and Mr Mamattah told her that he was making the call because of the worrying contents of the anonymous letter that LBH had received about their daughter and about the initial assessment process that SPR had started as a result. The log records AB as having instantly become defensive and as having stated that it was ridiculous that LBH was taking an anonymous letter so seriously. She asked for the letter to be read out and, after it was, again said it was ridiculous and that there were numerous other ways of dealing with the situation. After Mr Mamattah had stated that he had not completed checks, AB asked how he had got the mobile number which, since it was a private number, he must have got from a check made during the initial assessment process. She then asked for, and was given, the name of the person who had given Mr Mamattah the number they were speaking on and she stated that she wanted the date of the proposed visit to their home to be put into writing and that her solicitor should be present.[36]AB reacted strongly to this call for a number of related reasons. These were:(1) It seemed to AB, with her knowledge of child protection procedures, that LBH had made several serious errors in the way it had dealt with her daughter’s case.(2) LBH should have obtained her or CD’s permission before making any contact EF’s GP and school but had in fact approached those agencies without even attempting to obtain it.(3) LBH appeared to have embarked on an initial assessment of her daughter without first evaluating her risk to satisfy itself that one was needed. In her view, a risk assessment was particularly necessary since the referral had been made by an anonymous member of the public so that it could not be tested or evaluated.(4) Before deciding on an initial assessment, a social worker should have seen EF on her own to assess whether it was possible that she had been subjected to a significant risk of being seriously harmed.(5) The threshold for the decision to start an initial assessment had not objectively been reached in this case.(6) Even if it turned out that it was wholly unjustified to carry out an initial assessment, the fact that it had taken place could ruin the careers of both her and CD as professionals involved in child protection work.(7) None of the appropriate steps had been taken that would have enabled an objective and fair decision to be taken that it was necessary to embark on an initial assessment of her and her family. AB had grounds for legitimate complaint about each of these features of the decision-making process leading to the initiation of an initial assessment process.[37]As soon as he put the phone down, Mr Mamattah reported the content of this conversation to his manager Mr Baker and the practice manager Ms Mawdsley. Mr Baker thought that he should take over the referral immediately, particularly as both parents were child protection professionals in management positions. He phoned one of the numbers in SPR’s possession and AB answered. Mr Baker explained to her that although he recognised that the anonymous call might have been malicious, it needed further investigation so he had authorised an initial assessment to be opened. He also explained that the only unauthorised checks that had been carried out were to clarify that the child lived at the address that SPR had been provided with by the screening enquiries. Mr Baker recorded in the log that AB had been defensive from the start and had raised her voice. He reported her as stating that she would be contacting the director of Children’s Services. She also made comments that he would not have expected a social care professional to make such as that he was obviously not English (he is in fact an American). The call ended with Mr Baker stating that he would speak to his manager and the head of service about how SPR would proceed with her concerns. The log then stated what he did in an entry of some importance:
“Subsequent to this conversation, I have re-allocated the case to Practice Manager Katherine Mawdsley and liaised with Head of Service and Deputy Head of Service. I was decided that we would need to make a referral to the LADO due to father and mother being professionals.”
[38]Mr Baker, in his witness statement prepared for the judicial review hearing, gave two further pieces of evidence. He stated that AB had shouted, as opposed to raising her voice as recorded in his entry in the log, and that she responded with vehement complaint. He also said that the call was after school time and he had had the impression that the child was also in the car and was party to his conversation with AB and the tone of voice that her mother was using. AB firmly denies that the call was after school time and, instead, has a vivid recollection of it being made soon after the first call when she and CD were still driving into North London having just passed under the M25 and that EF was not present in the car. She also denies shouting or displaying hostility but accepts that she raised her voice because she was frustrated at what she continued to see as SPR’s unprofessional approach to this case. AB’s evidence on these matters is to be preferred, particularly as it is very unlikely that Mr Baker made the call at the time he suggested he made it or that EF was present in the car when phoned.[39]Mr Baker stated that he took the matter to Ms Chew soon afterwards because his own line manager was not in the office at the time. His statement explains his thinking at this moment in the history:
“… I would not expect a professional to shout and ask such inappropriate questions of a professional carrying out their job. I did read the referral out to her on the phone in its entirety and as I did so and she responded with further vehement complaint, I could not help but be reminded of the actual allegations made by referrer. … As both parents were speaking to me in the car and it was after school time, I had the impression that the child was also in the car and was party to the conversation and the tone of voice being used by her mother. All of this combined led me to decide that the threshold for regarding the child as vulnerable had definitely been met but there was also the need to consider the implications of the parents being professionals. For this reason I took the matter to Sylvia Chew, the Head of Service, because my own line manager [Ms Austin] was not in the office at the time.”
[40]Mr Baker does not given any evidence of what was said at this meeting save, as already stated, that he liaised with Ms Chew. The log is otherwise silent about this meeting. Ms Chew’s evidence is, therefore, critical. It is also contained in a witness statement prepared for this hearing and it is very short. She stated that Mr Baker gave her the following details:
“(i) ,,, that the service had received a referral about an unknown child. (ii) The information in the referral was concerning and reported that a young female child had been seen dragged down the street by the arm by a female who was also shouting at her. (iii) Limited screening checks had been made and the child had been identified as Child A. (iv) The matter had been passed to Mr Baker … He had allocated the matter for an initial assessment. (v) The allocated social worker had called the family to set up an initial visit. He had not received a positive response to this call and had asked Mr Baker to follow this matter up. (vi) The response received by Mr Baker was of concern in that [AB] had responded in an angry manner, questioned Mr Baker’s credentials and decision-making ability and presented in a manner which reflected the information received in the referral.” (ii) The information in the referral was concerning and reported that a young female child had been seen dragged down the street by the arm by a female who was also shouting at her. (iii) Limited screening checks had been made and the child had been identified as Child A. (iv) The matter had been passed to Mr Baker … He had allocated the matter for an initial assessment. (v) The allocated social worker had called the family to set up an initial visit. He had not received a positive response to this call and had asked Mr Baker to follow this matter up. (vi) The response received by Mr Baker was of concern in that [AB] had responded in an angry manner, questioned Mr Baker’s credentials and decision-making ability and presented in a manner which reflected the information received in the referral.”
[41]Ms Chew then stated that she concluded that Child A (i.e. EF) might be at risk of physical and emotional harm. Taking account of both the referral and the parental reaction on the telephone, she concluded that the concerns reached the level 4 threshold since parental responses were “erratic, over critical or lacking warmth Level 4 set out in LBH’s Thresholds of need and service responses document. This was the top level of need in the “Continuum of need and intervention”. ” although the document she was referring to as providing her with this guidance was significantly different in its wording in stating that the relevant indicator was “parents inconsistent, highly critical or apathetic towards children”, of which responses there was no fact-based evidence.[42]Ms Chew then continued:
“I then considered whether the concerns raised in the referral and subsequent parental response warranted an assessment under s47 Children Act 1989. My conclusion was that the referral fulfilled the criterion of s47 … in that Child A … had come to our notice that gave me reasonable cause to believe that she was suffering or was likely to suffer significant harm. In considering whether the actions reported may be harmful I used the definition of emotional abuse set out in the London Safeguarding Board Child Protection Procedures adopted by Pan London by each Safeguarding Children Board (4.2.2) which defines emotional abuse as “persistent emotional mal-treatment of the child and may involve conveying to the children that they are worthless or unloved, inadequate or valued in so far as they are of value to someone else. This conclusion was reached taking into account both the referral and the parental response. I would not have reached this conclusion based on either of the incidents alone. Ms Chew was referring to the contents of the anonymous letter and of AB’s telephone responses to the student social worker and Mr Baker. ”
[43]Ms Chew again misquoted from the primary guidance she was relying on. The relevant passage in the London Child Protection Procedures in fact stated that emotional abuse was:
“… the persistent emotional maltreatment of a child such as to cause severe and persistent effects on the child’s emotional development.”
There was no evidence that EF’s emotional development had been severely and persistently affected by persistent maltreatment.[44]Ms Chew did not explain to whom she communicated her decision that a section 47 enquiry should be initiated forthwith or whether Mr Baker was present when she reached that decision. It is noticeable that he does not refer to any discussion between himself and Ms Chew at the meeting, let alone any decision being made during it that a section 47 enquiry should start. Furthermore, his evidence was that the discussion he had with Ms Chew was with her alone. Ms Chew stated in her evidence that:
“I was approached by Jeffrey Baker, a Team Manager, and Chrissy Austin, Deputy Head of Service, on 4th May 2011 to discuss a matter relating to a child …”
. This must be a reference to two separate discussions, firstly with Mr Baker and subsequently with Ms Austin. Since Mr Baker only went to see Ms Chew because Ms Austin was not available, there could not have been a three-way meeting. The absence of any reference to a discussion about a section 47 enquiry superseding the initial assessment process that he was currently involved with suggests that no decision was taken at that meeting and no reference was made to a section 47 enquiry then and that Ms Chew’s decision was taken subsequently, possibly during or following a discussion with Ms Austin.[45]Ms Chew stated that she wrote to AB on 5 May 2011 advising her of “my decision-making”. In her letter addressed to both AB and CD on 5 May 2011, she stated quite clearly:
“… this department will be undertaking a section 47 investigation in relation to your child. This is due to the nature of the allegations.”
However, there is no reference in the log and no decision was reported at the time to the effect that Ms Chew had decided to initiate a section 47 enquiry. The only reference in the log, written up on 24 June 2011 some seven weeks later, was two lines clearly paraphrasing the statement in Ms Chew’s letter to the claimants:
“Letter sent to parents from Sylvia Chew, Head of Service, informing them that a decision has been made to undertake a section 47 investigation in relation to [EF] due to the nature of the allegations.”
The letter also stated:
“… In line with the London Child Protection Procedures and given the nature of the concerns and conversation you had with Mr Baker, thee enquiries will now be made under the Allegations against Staff Procedures (section 15) and the matter has therefore been referred to LADO. A Strategy Meeting will be convened and this department will be in touch with you after this has occurred.”
The letter did not explain whether the section 47 investigation would only start if and when the LADO strategy meeting decided that it should start, in accordance with the section 15 procedure, or whether, exceptionally, the investigation would start forthwith and without taking account of the strategy meeting’s decision if this was to the effect that the investigation would not take place. The only obvious conclusion is that it was intended that the section 47 enquiry decision would only be taken after and in the light of the discussion at the LADO strategy meeting.[46]This letter had not been received by AB and CD at home by the time they left home for a short weekend visit during the evening of 5 May. They found it when they returned on Sunday 8 May and it must have been delivered by the postman on Saturday 7 May. That suggests that the letter, although dated 5 May 2011, was posted on 6 May and delivered on 7 May.[47]On 5 May, Ms Chrissy Austin, the Deputy Head of SFR, informed Ms Mawdsley that a strategy meeting had been set up with LADO for the following day. Ms Chew had reported to the LADO on 4 May that both AB and CD were within the reporting requirements to LADO and were subject to current allegations or concerns of abuse. She was required to do this by the London Child Protection Procedures since both appeared to be “members of staff”, being paid or unpaid staff in LBH or another London authority, and both “work[ed] with children in connection with their employment or voluntary activity” Paragraphs 15.2.1 and 15.1.2. . Once the LADO became involved, the Procedures document required a strategy meeting to be called, one of whose purposes was to decide whether there should be a section 47 enquiry and to consider the implications Paragraph 15.3.16. .[48]This meeting could, and did, take place over the telephone between Mr Baker and the LADO, Ms Murray. This meeting followed a telephone discussion between Mr Baker and the DS who had been designated as the police liaison in this LADO matter. The DS informed Mr Baker that the police declined any involvement since it was an anonymous referral and the child had not disclosed anything yet. She requested that the child should be seen on her own and that the police should be further involved if any abuse was disclosed. It was agreed that this work would be undertaken entirely by SFR as a single agency enquiry which is not an enquiry that is undertaken under section 47. It was also agreed that a core or section 47 assessment would be initiated when, but only when, a subsequent strategy discussion had concluded that this was necessary. A final note on the Record of Strategy Discussion read:
“If you [i.e. SFR] need an Initial Conference to be convened as agreed by your Manager, send an email to [email address given] (attach a completed Convening sheet to your request).”
This was a reference to the possible request for a section 47 initiating conference if such was needed in the future. No such request was subsequently sent to the police and no initial or initiating conference was ever convened.[49]The strategy discussion that took place between Mr Baker and Ms Murray is recorded in a Strategy Discussion Record that Ms Murray filled up in manuscript. It is not fully legible but it is clear that the two agreed that no decision was taken at the meeting to hold a section 47 enquiry. Instead, the meeting was informed by Mr Baker of his discussion with the DS to the effect that there would be no police action because the child had not been interviewed and that the GP and the child’s school had no concerns. It was agreed that background police CAIT checks would be carried out, that the school would be approached and that there would be a visit to the family at their home during which the child would be interviewed on her own.[50]On 6 May, Mr Baker also spoke with EF’s Primary School Head Teacher. He informed the Head that SFR was doing an assessment (it is to be noted that the log does not refer to this as a core assessment) following receipt of an anonymous referral. He asked whether there were any concerns and the reply was that there were no concerns per se although EF was not “the most smiley” young lady.[51]This was followed up by the home visit which had been arranged by Mr Baker by email and telephone first thing on Monday 9 May. In the emailed letter, addressed to both AB and CD, he stated somewhat cryptically:
“… we will be undertaking an assessment which will require that we visit your home and see [EF] and yourselves including speaking to your daughter on her own.”
The letter also reminded AB and CD that they could phone the CYPS Complaints Team with specific reference to AB’s complaint that her sister had been telephoned by SFR having obtained that number from an outside agency without her prior consent.[52]Mr Baker and Ms Mawdsley’s home visit took place later that morning. The visit was undertaken by Mr Baker who interviewed AB and CD at some length in one room and Ms Mawdsley who interviewed EF and her elder sister at some length in EF’s room. Ms Mawdsley reported very favourably about EF and she informed Mr Baker soon after the interview had been concluded that she had no concerns about EF who had made no disclosures. Likewise, Mr Baker reported that AB and CD presented as reasonable and believable and he advised them, having spoken to Ms Mawdsley, that SPR would most likely be closing the case after he had conferred with his manager.[53]On 9 May, a further LADO strategy meeting was held. Mr Baker recorded that the home visit was fed back to LADO and that LADO made the decision to take no further action. He also noted:
“Child protection concerns raised in the referral were not substantiated and case was closed.”
[54]On 10 May, Ms Mawdsley noted the following about the investigations and assessments that he had carried out:
“Following the home visit to [EF] and her parents and having considered information shared from other agencies, it is my opinion that it is highly likely that the referral received was malicious. It is my assessment that [EF] is not at risk of significant harm in the care of her parents.”
Ms Mawdsley recommended:
“Case to close – Team manager sent letter to parents on 11 May 2011 informing them of this decision.”
The Manager, Mr Baker’s decision was also set out:
“Agree with Practice Manager recommendation. Case now closed.”
See paragraph 72(5) below for an explanation of the document on which these comments were set out. This decision was taken on 9 May 2011.[55]The initial assessment template, being the document on which had to be filled in by the case manager Mr Baker, amongst other matters, the details of the progress and record of the initial assessment, the date that the referral was received was filled in as 28 April 2011, no date was filled in for the date that the initial assessment commenced and the authorisation signing off the initial assessment was signed by Mr Baker and dated 9 May 2011. Save for no commencement date, those details were correct. However, the crucial boxes in which the details of the assessment that should have been carried out using the CAF and referring to such matters as the child’s developmental needs, the capacity of the parent to respond to the needs of the child and family and environmental factors were not filled in and the boxes for the child’s wishes and feelings and summary and risk analysis were filled in with the irrelevant comment that the case needed a strategy discussion due to the parents being child protection professionals.[56]This way of filling in the template left its status uncertain and its utility worthless. It was purporting to sign off a completed initial assessment on 9 May 2011 but it contained no details of the assessment that had been carried out and no further action was identified save that a strategy discussion should be initiated. That could only mean in context that no initial assessment had been carried out and, by inference, that there should nonetheless be the strategy discussions that were required to be carried out before a decision to embark on a section 47 enquiry was taken. Yet, as has already been noted, by the time that Mr Baker had signed off the initial assessment in this way, he had already accepted the practice manager’s recommendation that the entire case in relation to this referral should be closed. In short, this initial assessment decision was a nonsense.[57]The nonsense was compounded by Mr Baker then filling in a core assessment template that was used for cases where a section 47 enquiry had been started and completed and where the details of the necessary core assessment had to be filled in. This stated that the reason for the core assessment was the receipt by CYPS on 15 April 2011 of the anonymous referral and that the date that the section 47 investigation began was also 15 April 2011. In the section designed for the details of the assessment, Mr Baker had filled in at length each step that he and his team had taken in relation to this referral from 15 April to 10 May. His and Ms Mawdsley’s comments to the effect that the case was to close which were made on 10 May were provided in the conclusions and risk analysis section. Like the initial assessment form that preceded this form, the relevant boxes in which details of the assessment based on the CAF, being in this case the core assessment, were not filled in. EF’s Person Details, in the section for Child Protection Core, recorded the commencement date of this assessment as being 10 May 2011 As recorded in the Child Protection Core log attached to EF’s personal details. and both that document and the assessment form itself stated that the core assessment was signed of on 24 June 2011.[58]This assessment form was also a nonsense. It purported to describe a core assessment process that started immediately following the conclusion of the initial assessment process even though that process had concluded that the case was closed on the day before the core assessment was logged as having started. Moreover, no details of any assessment were given and the assessment process was stated to have closed on 24 June 2011 some seven and a half weeks after the file had been closed and without any assessment having, apparently, been conducted.[59]Mr Baker communicated the decision to close the file in a letter to AB and CD dated 11 May 2011. This stated: “I am writing to confirm that my team will be taking no further action with regard to anonymous referral we received in relation to [EF]. Having undertaken a home visit and spoken to yourselves and [EF] we accept that it is highly likely that the referral was malicious per your explanation and we do not feel that there is a risk of significant harm which would be our threshold for further assessment or intervention. … As you are aware the decision was subsequently taken to deal with the matter as a section 47 investigation, partially (sic) due to the nature of your reaction but also due to the physical nature of the allegations made in the referral.” (4). AB and CD’s complaints[60]It is necessary briefly to record the complaints that AB made about the whole process since these were stated to have informed SFR’s managers’ views that EF was at risk of being likely to suffer significant harm.[61]The first mention of a complaint was made by AB to the student social worker during the first telephone conversation she had with a SFR representative on 4 May 2011. She stated, or possibly threatened if SFR’s witnesses are to be believed, that she would speak to the Director of CYPS and complain to him about the outrageous way that SFR was behaving in considering the referral about herself and her husband. Later that day, AB did indeed complain to him. She drafted and sent to him a very lengthy email which forcefully set out her experience of child protection measures and why it was an affront for her and her family to be the subject of an initial assessment process as a result of a maliciously motivated and bizarre anonymous letter. This letter stated on its face that it had been copied to the Minister for Children and Families, the local MP and a named local councillor.[62]This letter must have been received by the Head of CYPS late on 4 May or early on 5 May, but it was not answered until Ms Chew responded on 18 May 2011. However, in her evidence and as part of the explanation for her decision to direct a section 47 enquiry forthwith, she stated:
“… taking into account both the referral and parental reaction on the telephone, it was my conclusion that the concerns reached level 4 threshold – parental responses being erratic over critical and lacking warmth.” 68. There had not been any suggestion previously that EF was currently at risk from emotional harm at the most severe level 4 threshold. The statement also stated: “… I wrote to [AB] on 5 May 2011 advising her of my decision-making. At the same time, [AB] was writing a letter to [LBH]. That is the letter 4 May 2011 which is referred to at length in the summary grounds for resisting the claim. To my mind, that letter gives rise to further series of concerns of the types described above and afforded a further series of reasons for commencing a section 47 enquiry.”
No explanation was given as to why AB’s complaints about the perceived errors in LBH’s decision to conduct an initial assessment without first speaking with the child in question and by allegedly breaching the requirements of confidentiality in making screening and initial enquiries gave rise to any concerns and what those concerns were.[63]By mentioning these points about AB’s 4 May letter, Ms Chew raises the distinct possibility that her section 47 decision was made after, and in the knowledge of, the contents of this emailed letter and that that knowledge adversely affected her decision that the investigation of AB and CD should be rapidly escalated, without due process, into a section 47 enquiry.[64]Mr Baker, in his letter to AB dated 11 May, added that the matters raised in her email of 4 May to the Director of CYPS amounted to a complaint against the Department and his service specifically. However, according to his letter, AB had indicated when they spoke on the phone that the letter was not intended to be a complaint. This passage of the letter concluded by stating that if AB notified the Director’s office that this was so, the Department would consider the matter concluded.[65]Ms Chew responded to AB’s email in a letter dated 18 May. The letter answered AB’s specific points and invited her to contact the complaints team if she remained dissatisfied. The letter contained this passage:
“Mr Baker informs me that he explained to you his decision to deal with the referral as an initial assessment. To sum up: the referral paints the picture of an unhappy child who is slapped and pulled along by the arm in public with yelling overheard within the home. Due to the allegation of public physical mistreatment, Mr Baker decided that a visit to see the child; which is done only as part of an initial assessment, was warranted. I do not accept that Mr Baker told you that he would have thought differently about the initial assessment decision if your reaction had been different as he has been clear that he told you that the decision would stand. It was however, my decision as I informed you in a letter to you dated 5 May 2011, to make the referral a section 47.”
[66]Taking these exchanges in the round, and given the timing which suggests that the letter of 5 May 2011 was put into the post on the 6 May 2011 some 48 hours after AB’s email to the Director had been received in his office, it would appear to be an inescapable conclusion that Ms Chew took her section 47 decision after the meeting with Mr Baker on 4 May, after having had sight of AB’s letter and having taken into account its contents. The grounds for Seeking Judicial Review[67]After this very lengthy analysis of the relevant events and documents, it is possible to refine the grounds for seeking judicial review. Essentially, it is contended by Ms Grey QC on behalf of AB and CD that Ms Chew’s decision to abandon the initial assessment process and immediately to escalate SFR’s response to the referral into a section 47 enquiry was unlawful. Firstly, the decision itself was not, either in substance or form, one that amounted to a decision to establish a section 47 enquiry at all so that, in truth, no section 47 decision was taken and no section 47 enquiry ever started. Secondly, if such a decision had in fact been taken, it was taken without there being any proper grounds to support it. The decision was, on analysis, so flawed procedurally and so fundamentally lacking in the essential minimum requirements of a guidance-compliant decision-making process that it was unlawful.[68]The claimants no longer separately challenge as being unlawful the decision to initiate an initial assessment. They do, however, seek a declaration that SFR acted unlawfully in seeking information about EF from her GP and school without first obtaining parental consent and by providing inaccurate information for the purpose of obtaining such information.[69]These grounds require these issues to be addressed: (1). Was a section 47 enquiry decided upon? (2). If so, was it unlawful? (3) Was the data-gathering exercise before and during the initial assessment process unlawful? (4). What remedies are the claimants entitled to? Issue 1: Was a Section 47 Enquiry Decided Upon?[70]The LBH’s case is that Ms Chew decided at the meeting with Mr Baker on 4 May 2011 that the initial assessment should be aborted and turned immediately into a section 47 enquiry. This is a remarkable claim since Ms Chew only recorded this decision in her letter to AB and CD on 5 May 2011 and neither logged the decision in the case notes nor recorded it in any other way and took the decision without the involvement of Mr Baker and whilst also making a reference to the LADO for a strategy meeting to be held after the decision was said to have been taken The only record of it having been made in the FWi system was this throw-away statement made by Mr Baker in the core assessment document entered on 26 June 2011:
“Letter sent to parents from Sylvia Chew, Head of Service, informing them that a decision has been made to undertake a section 47 investigation in relation to [EF] due to the nature of the allegations.”
It is inconceivable that a formal section 47 enquiry decision would be taken in such a casual manner and without being recorded contemporaneously in any document save in a letter to the parent of the child who had been referred and that that decision was not reported to the LADO or the DI liaison police officer or logged or noted on the core assessment document or dealt with in the evidence of Mr Baker. This is particularly so since, had the decision been taken as claimed by Mr Chew, she would have been making a quite exceptional decision not only to abort the initial assessment but also to dispense with the strategy decision-making process and without a home visit or interview with the child having taken place. Such a decision could only, under the guidance procedures, have been taken if the situation was one of critical, indeed dire, emergency.[71]The following reasons all point to there never having been a section 47 decision: (1) All the guidance documents concerned with child protection state that every decision taken during an initial assessment or section 47 enquiry should be recorded. This is particularly so of a decision to initiate a section 47 enquiry or to terminate an initial assessment prematurely. Thus, paragraph 6.6.20 of the London Child Protection Procedures states:
“A LA children’s social care manager must approve the outcomes of an initial assessment … The manager must also record and authorise the reasons for decisions, future actions to be taken and also that: The child has been seen or there has been a recorded management decision that this is not appropriate (e.g. a s47 enquiry and police investigation initiated which will plan method of contact with child); …”
The child has been seen or there has been a recorded management decision that this is not appropriate (e.g. a s47 enquiry and police investigation initiated which will plan method of contact with child); …” (2) Following the suggested decision, the initial assessment process continued. A referral was made to the LADO and to the police, strategy meetings were held with both separately, both meetings decided on further enquiries having to be made within the initial assessment process and both decided at subsequent strategy meetings held on 10 May that the referral would be terminated and the file closed. (3) The core assessment template was only opened on 10 May 2011 after the decision had been taken by Mr Baker, in conjunction with the LADO and police representatives, that the referral file would be closed. (4) The file had been delegated to Mr Baker and he was the manager, in conjunction with those attending the relevant strategy meetings, who was delegated to take the section 47 enquiry decision. Although Ms Chew could direct Mr Baker that she would take over the decision from him, it would only be in extreme circumstances that such a decision would be taken and that no strategy meeting would then take the section 47 decision and that the manager in question would have that decision taken out of his hands. Such an unusual and extreme decision could only be taken in exceptional circumstances and, had it been taken, it would have been recorded in black and white, the reasons for taking it would have been recorded and Mr Baker would have covered this decision in his evidence. None of those things occurred. (5) Particularly significantly, the family were visited and AB and CD were interviewed separately from EF. These interviews were not in structure or content part of a core assessment but were part of, indeed the principal component part of, an initial assessment. (6) Whereas it is perfectly possible to terminate and abort an initial assessment, the guidance provides that a core assessment should be completed even if it emerges that the criteria for a section 47 assessment are not in fact present. In such a case, the outcome resulting from the completed core assessment will be that the child is not subject to significant harm and any recommendations for future interventions or that no future interventions are needed will be recorded. (7) The guidance also makes it clear that the section 47 decision must be taken at a strategy meeting, held if necessary, if the situation is one of extreme emergency, over the telephone. Such meetings were held and both decided upon there being no further action and that decision was recorded by Mr Baker, albeit long after the fact in the core assessment document. (8) Ms Chew appears to have taken the section 47 decision after Mr Baker had left her and, it now seems from an analysis of the evidence, only after she had sight of AB’s email to the Head of Service dated 4 May 2011. She then appears to have reacted hastily and as a direct response to seeing that email and only communicated her decision to AB and CD in her letter dated 5 May 2011 which was delivered on 7 May 2011. That cannot be regarded as a final and conclusive section 47 decision given all the shortcomings that I have described.[72]There are only these possible reasons for contending, notwithstanding these considerations, that a section 47 decision was taken by Ms Chew but none of them provide a lawful basis for LBH’s contention that a decision was made: (1) The London Child Protection Procedures document provides as follows:
“If the criteria for initiating s47 enquiries are met at any stage during an initial assessment, the assessment should be regarded as concluded.”
Paragraph 6.6.21. On behalf of LBH, it was contended by Mr McGuire QC that this obligated Ms Chew to abort the initial assessment and convert what had already been done into a section 47 enquiry because she had reached the conclusion that the section 47 criteria had been met. (2) However, that is not the effect of this provision of the guidance document. It merely states that the assessment should be regarded as concluded. However, the strategy meetings must still take place and it is they, and not some earlier emergency decision by a senior manager, who take the final decision. Until then, the LBH as the authority in question has yet to reach the conclusion that the section 47 criteria have been met. Thus, Ms Chew’s “decision” was no more than her expression of view of what should happen in the near future following the strategy meeting decision that had to be taken. (3) Her decision, if it had indeed been taken at all, was one that required the conclusion of further work on the assessment and a report to and a decision by a strategy meeting. This was of particular importance in this case since LADO was involved and the guidance makes it clear that the LADO must participate in a section 47 decision. Indeed, Ms Chew stated in her letter to AB and CD that: “… these allegations will now be made under [the LADO procedure]. A strategy meeting will be convened and this department will be in touch with you after this has occurred.” (4) Clearly, therefore, the section 47 decision also referred to in the letter was conditional upon and ineffective until the LADO strategy meeting authorised a section 47 decision. No such authorisation was ever obtained. Instead, the reverse occurred and the LADO strategy meeting decided to close the file and end all consideration of the referral. (5) Mr Baker completed a core assessment template. However, as already described, this template was a sham in the sense that it was opened on 26 June 2011 and closed the same day long after the referral file had been closed. Its sole purpose seems to be to provide a document in the logged details that had the appearance of a core assessment since, by 26 June 2011, it appeared that AB would be taking this matter further and there was no reference to the section 47 decision referred to in Ms Chew’s letter dated May 2011 to be found anywhere on the electronic file. (6) Ms Chew stated in writing that she had taken this decision. However, that so-called decision, on analysis, appears to have been a knee-jerk reaction to seeing AB’s email to the Director of Service. The decision didn’t affect or terminate prematurely the initial assessment process and it was never made a formal decision of LBH as opposed to an ill-considered wish which it was intended to implement as a decision but which never was implemented.[73]It follows that there never was a section 47 enquiry decision and LBH’s insistence that one was taken is both erroneous and unlawful. Issue 2: If a section 47 decision was taken, was it unlawful?[74]The claimants are entitled to a decision from the court as to what the position would have been had Ms Chew succeeded in making a section 47 decision. The answer is a clear and unequivocal one: that decision would be unlawful and should be set aside. This is for the following reasons:(1) The decision would have been taken without taking into account the GP’s views and the views expressed by its silence by EF’s school to the effect that those agencies had no concerns about EF’s well-being. It would also have been taken without the views of the school, the police, the LADO, EF or AB and CD being taken into account as they were when the initial assessment termination decision was taken 4 working days later.(2) The decision would have been made before the imminent home visit and meeting with AB and CD and the separate meeting with EF. Such a visit is an integral part of an initial assessment and should be built into the decision-making process to determine whether the section 47 threshold had been crossed. The need to wait for this to take place before deciding whether or not to initiate a section 47 enquiry arose because SFR were unable to arrive at the position that it had reasonable cause to suspect unless and until this visit had taken place. This was particularly so as the visit was imminent and no reason had been advanced to truncate it only three working days before it was to take place. Moreover, the referral was anonymous and there were concerns as to whether it was authentic. Finally, it would lead to the extraordinary situation that a section 47 enquiry had been initiated without anyone from SFR seeing or meeting the child or the parents and without there being any good reason for taking this course. Such a course would only have been appropriate if a home visit would endanger EF or if there was an extreme emergency and neither of those reasons was present.(3) No consideration was given as to why it was necessary to take such an unusual course whereby no home visit would take place, no attention would be paid to the views of the police, LADO, the GP or the school and no strategy meeting would be involved in the decision and all these things were capable of being undertaken within 3 working days.[75]It follows that the decision, had it been taken, would have been wholly unreasonable and unsustainable since it would have failed to take account most of the crucial matters required of a section 47 decision and there was no reason for taking the decision in the way it is now suggested it was taken. Issue 3: Was the data-gathering exercise before and during the initial assessment process unlawful?[76]The initial data-gathering exercise was unlawful in two respects:(1) The initial request for data was sent to EF’s GP accompanied by the erroneous information that LBH was currently working with the family, that LBH was already undertaking a CYPS assessment and that confidential details including the possible presence of risk indicators of physical abuse, should be provided. In addition to these statements or implications being erroneous, no consent had been obtained from EF’s parents and it was not a justification to seek the information without consent that their identity was not at that time known since this statement was also untrue.(2) The consent of the parents had not been obtained before the school was approached. Moreover, it was impermissible to post details of the referral on RIO to enable the school nurse to read them prior to obtaining the parents’ consent.[77]These were serious departures from permissible practice and these actions were unlawful. Issue 4: What remedies are the claimants entitled to?[78]The claimants are entitled to a quashing order quashing the purported section 47 enquiry decision and to declarations that there never was a section 47 enquiry decision, that the initial assessment was terminated because EF was not at risk of significant harm and because it was highly likely that the anonymous referral was malicious. In consequence, the Manager and the Practice Manager decided to close the case. They are also entitled to declarations that LBH acted unlawfully in not seeking AB and CD’s consent before approaching EF’s GP and school and seeking information from them.[79]That leaves over for further argument what steps should be ordered to be taken to ensure that all references to AB and CD having been subject to a section 47 enquiry are removed from all data bases and that all appropriate persons who should be notified of this are notified and what the terms of that notification should be. Furthermore, it leaves over a claim for damages on which I need further argument as to both entitlement and amount. HH Judge Anthony Thornton QC

Cited in 1 later judgment