London Borough of Haringey v Musa [2014] EWHC 1341 (Fam)

[2014] EWHC 1341 (Fam)

Case No. FD14P00069

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice

Date Wednesday, 16 th April 2014

Before

MR JUSTICE HOLMAN

(sitting throughout in public)

B E T W E E N:

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Between

LONDON BOROUGH OF HARINGEY Applicants

MUSA Respondents

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MR R. HOWLING QC (instructed by the Legal Services Department of the London Borough of

Haringey) appeared for applicants.

MISS J. ATKINSON (instructed by Sam Solicitors) appeared for respondent mother.

for THE RESPONDENT FATHER did not appear and was not represented.

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J U D G M E N T

[1]I have heard this case throughout today in public and now give this judgment in public. It follows on from two previous recent hearings before me, also in public, on the 19th March 2014 and the 11th April 2014. The judgments that I gave on each of those dates are also fully public judgments and publicly available on the Bailii website. As a matter of identification, the judgment of the 19th March 2014 is under neutral citation number

[2014] EWHC 962 (Fam)

, and the judgment of the 11th April 2014 is under neutral citation number

[2014] EWHC 1200 (Fam)

. Each of those judgments were to some extent sequential, the one to the other, and this judgment is clearly sequential to both of them. For those reasons, I will not repeat at any length what is already set out in those two judgments. Effectively, anyone who chooses to read the present judgment needs first to read both of those judgments.

[2]However, the position that has now emerged since my judgment of last Friday, the 11th April 2014, is, in my view, one of great gravity, and in order to put it into context I must, as briefly as possible, summarise the facts. The case concerns a sibling group of seven children who are full siblings of each other. They now fall into two sub-groups. The five eldest range in age from 13 to nearly seven; the two youngest are aged about three-and-three-quarters and just two. There was a long hearing before a High Court judge, Charles J, in May 2012. The applicants in these proceedings and at that hearing were the local authority, the London Borough of Haringey. For reasons which are very fully explained in the judgment of Charles J of May 2012, he decided that the five eldest children should be placed in the care of the London Borough of Haringey on care plans which contemplated that they would be fostered throughout the remainder of their childhoods, but not adopted. The two youngest children were made the subject of placement orders which authorised the London Borough of Haringey to place them with a view to adoption. At that time all the children, although living in a number of different settings, had contact with each other, although the seventh and youngest child was merely a baby. The case therefore raised, in obvious and stark form, the question whether or not, and to what extent and by what means, there should be long-term contact between the various children both before and after the contemplated adoption of the two youngest.

[3]There was considerable evidence as to that issue, including the report and recommendation of a consultant child and adolescent psychiatrist who is referred to in the judgment of Charles J as Dr A. The outcome, insofar as it concerned contact, was summarised by me in a passage between paragraphs 5 to 8 of my judgment of the 19th March 2014. At the risk of repetition, but because it is the essential backcloth to, and context of, the present judgment, I will just read out those paragraphs. "5. During the course of the hearing before him (which related not only to the two youngest children but to all seven children - see the heading to his judgment and resulting order) Charles J gave careful consideration to whether or not there should be longer term direct contact between the five eldest children on the one hand and the two youngest children on the other hand, even after placement and ultimate adoption. As I understand it, an expert who had given advice in the case very strongly recommended that there should be ongoing long-term direct contact [that is, face-to-face contact] between all seven children in the overall best interests of them all. At paragraph 158 of his judgment Charles J said:

'Neither the local authority, nor the guardian, sought an order for sibling contact and both invited me to make a placement order with a recital, proposed by the guardian, indicating that the local authority accepted the evidence and considerations of Dr A and the guardian that high priority be given to direct post-placement contact between all the siblings.' 6. Pausing there, it can be seen, therefore, that in the view of the guardian, then representing all seven children, there needed to be 'high priority' to long-term direct contact. At paragraph 159 of his judgment Charles J continued: '

To my mind, if prospective adopters are told that high priority is being given to inter-sibling contact, and thus far it seems to me if the process is to be transparent and true to its word, the children will not be placed with them unless they are prepared to offer it, it is difficult to see why an order that provides for this would put them off.' 7. At paragraph 164 he continued:

'So, I will make an interim contact order that, unless and until the court orders otherwise, both before and after placement the local authority and any persons with whom they are placed under the placement orders are to allow [the two youngest children] together to have reasonable direct contact with all of their full siblings.' 8. In order to give effect to that, the formal order of Charles J dated 8th May 2012 (I understand that he formally handed down his judgment a week or so later) provides that: '… until further of the court … the applicant and any persons with whom [the youngest two children] are placed shall allow [the youngest two children] to together have reasonable contact with their siblings …'

The five eldest children are then named."

[4]I may be naïve, but it seems to me that those words of Charles J in his judgment, and the language of his formal order could not be more clear nor more straightforward. So, just to summarise this situation as this case left Charles J in May 2012:(1) All parties, including the local authority, considered that "high priority" needed to be given to direct contact between all the siblings, not only before but also after placement with a view to adoption.

(2) The anticipation of Charles J clearly was that prospective adopters could and should be found who would not be "put off" by that prospect.

(3) There was an order in the clearest possible terms that the local authority had to allow direct contact between all the siblings both before and also after placement. That follows from the language of the order which binds not only the local authority but also "any persons with whom [the youngest two children] are placed …” The involvement of the persons with whom the children were placed was obviously only of relevance because the judge clearly intended and ordered that direct contact should continue not only before but after placement.

[5]For an appreciable period of time direct contact did take place regularly between the five eldest children and the two youngest children, although the seventh and youngest of all did not always attend due to his very young age.

[6]During 2013 the local authority identified the present prospective adoptive family. I have learned from documents produced by the local authority today that it was in May 2013 that there was an assessment of the prospective adopters as to their suitability to adopt these particular children, and it was during May that those prospective adopters were first informed about these particular children.

[7]As I have explained in my first two judgments, this case proceeded in the court room until part way through the hearing last Friday morning on a clear understanding on my part, shared by the Queen's Counsel then appearing on behalf of the local authority, Miss Sarah Morgan QC, that arrangements for direct contact between all the children were still current. As I described in my judgment of the 11th April 2014, it came as a considerable surprise and shock to me and to many other people in the court room (and, I infer, also to Miss Morgan herself) when during the course of that hearing she was passed a note to the effect that there had actually been a "goodbye" or "farewell" occasion of contact between all seven children as long ago as Saturday the 14th December 2013. It is impossible to overstate the profundity and implications of that for the future course of this case and the future lives of all seven of these children. Until that moment I personally had totally understood and assumed that the contact was continuing and that the issue for the court to decide in the present applications was whether, after thoroughly investigating and weighing all relevant factors, that contact should later be drawn to a close. The reason why the local authority say that direct contact must end is an understandable reason. They say that it is of the utmost importance for the two youngest children to preserve and protect the confidentiality of the family and whereabouts in which those children are to live. There is an obvious problem when a sibling group of children meet that things may be said, or slip out, such that one or more of the elder children learn the identity of the adoptive family or their whereabouts; and that that information might very rapidly find its way to one or both of the parents of the children or generally into the public domain, and the adoptive placement might be imperilled.

[8]All of that is a familiar problem and risk in cases of this kind, and one which I readily understand. But there is another side to it which requires very careful consideration also. That is the very point that had been described, and indeed ruled upon, by Charles J after that long hearing in May 2012, namely the importance of, and "high priority" which needed to be given to, maintaining an inter-sibling relationship between all seven of these children. It is my experience that social workers and others sometimes overlook in these tragic situations that relationships between siblings may be the most enduring of all relationships in many people's lives. Put bluntly, these children are all likely to be alive long after most of us in the court room, and prospective adopters and others, are long since dead. So there is always very considerable importance in these tragic situations of fragmented families in very carefully considering whether or not, and if so, how, long-term inter-sibling contact can be maintained even after adoption.

[9]At all events, the application by the local authority before the court is effectively to vary the subsisting order by Charles J as to long-term direct contact so as to enable it to be terminated. However, as I said in paragraph 23 of my judgment of the 11th April 2014, "It may not be possible now to unscramble the egg". It is not for me at this short hearing to prejudge what the final decision will be as to direct contact at the three-day hearing that has been fixed to start on the 1st July 2014. But, speaking for myself, I very clearly understand how extraordinarily difficult it may now be to resume and recreate any direct contact between the five eldest children on the one hand and the two youngest children on the other hand.

[10]It necessarily follows from the fact that the local authority arranged that "goodbye" or "farewell" contact on the 14th December 2013, with the intention that there should be no further direct contact at all between the five eldest children and the two youngest children, that the local authority have put themselves in a state of, frankly, flagrant breach of the order of Charles J of the 8th May 2012 from which I have quoted. It simply should not have happened that way. Last Friday Miss Morgan was not in a position to give to me and the other parties any account, description or explanation of how this frankly catastrophic situation had arisen, so I made an order last Friday that:

"The local authority must by [today] file and serve a detailed statement which is limited to, but deals in full with, when, why, and by whom the decision was made that on the 14th December 2013 a contact meeting between all seven children took place which has been described in court today as a 'goodbye' contact meeting and that no further direct contact would take place thereafter …"

I then arranged for this further hearing today in order that I could give consideration to that evidence once it had been assembled and filed by the local authority. I explained at the time that I regretted having to give such a relatively short period of time for the local authority in which to prepare that evidence, but today is the last day of the legal term before Easter and if this hearing had not taken place today there would have been a long and undesirable further delay. So I express my gratitude to the London Borough of Haringey and, in particular, to the two makers of statements to which I will shortly refer, for the speed with which they have indeed attempted to comply with that part of my order last week.

[11]In the upshot, I now have two statements. One is by Miss Annie Walker, who is the deputy head of services for the Children in Care Court Team of the London Borough of Haringey. She exhibits to her statement a volume of minutes of children in care meetings and other meetings that are described as "professionals’ meetings". The other statement is by Ms. Elaine Redding, who is the assistant director of Children and Young People's Services for the London Borough of Haringey. I intend to quote at a little length from those two statements for they tell the tale in their own words. At paragraph 5 of her statement Miss Walker says:

"… Although there are records referring to the issue of contact, I have not been able in this process to identify any decision making documentation which would assist me and the court in pinpointing when and who made the decision to terminate contact, prior to the matter being resorted to court and to arrange and undertake goodbye contact on the 14th December 2013."

Pausing there, the date upon which the matter was "resorted to court" was as recently as the 16th January 2014, when the formal application for permission to terminate contact was first issued in the court. Continuing with the statement of Miss Walker:

"6. I have located looked after review records which refer to the reduction or variation of contact but they did not assist me in identifying who made and when, the decisions in respect of which the court seeks clarity. The current social work team were allocated in October 2013 and from my discussion with them they continued with what they mistakenly believed was the decision to cease contact …"

Miss Walker then describes the process of identifying prospective adopters and that the present prospective adopters were approved as adopters in July 2013. She then says at paragraph 15:

"15. A hiatus in contact between the two younger children and their older siblings took place and there was no contact in August 2013, September and October 2013. October's contact did not take place due to severe weather conditions. I am unable to see any written material indicating either how or why the decision was made for August or September contact to be cancelled. This omission is being taken very seriously and will be incorporated into our learning."

Miss Walker then refers to:

"A professionals’ meeting was held on the 11th December 2013. At this meeting a goodbye visit/wish you well visit was arranged for the 14th December 2013 to take place in the older siblings' placement facilitated by the foster carers …"

She then describes how the eldest children were prepared for that meeting by their social worker and the youngest children were prepared by a psychotherapist. Still referring to the professionals’ meeting on the 11th December 2013 Miss Walker then says, at paragraph 21:

"21. The documents record the need to seek permission of the court to vary the contact order of Mr Justice Charles. This part of the document is legally privileged but this submission is made so that this court can clearly understand that the need to approach the court for a variation had been understood but it had not been married to the impending farewell visit. This is the central mistake in the case and one which the local authority both recognises and apologises for."

It is right to say, as Mr Rex Howling QC, who appears on behalf of the London Borough of Haringey today, pointed out, that the minutes of the professionals’ meeting of the 11th December 2013 record that the legal adviser, Rosita Moise, was not present at the meeting but had sent apologies. It appears, therefore, that there was no lawyer or representative of the legal department of the London Borough of Haringey present at that critically important meeting of the 11th December 2013.

[12]Despite everything that Mr Howling has said, I remain frankly baffled as to how those who were present at that meeting, which included such senior staff of the local authority as the adoption team manager who was chairing the meeting, can have thought that it was right and appropriate to allow a goodbye or farewell contact to take place about three days later when they knew, as the redacted minutes of that meeting apparently record, that they needed the permission of the court to vary the contact order of Charles J, and yet did not first pause to take legal advice from their own legal department, if not counsel.

[13]In her statement Ms. Redding, the assistant director of children's services, says, at paragraph 3:

"3. It is my opinion that there was well intentioned change effected around the planning for these children which incorrectly failed to take into account the legal framework. It is clear that aspects of the team's compliance with court orders made in respect of the children fell unacceptably short of good practice."

A little further on she says, at paragraph 5:

"5. I am satisfied that in this case there was good liaison between professionals to support the children's welfare needs, regular direct liaison between the social work and adoption teams and that the looked after children reviews took place. It is, however, unclear to me precisely when the decision was made to both reduce contact and arrange a farewell visit."

Ms. Redding concludes her statement by saying, at paragraph 6:

"6. This authority takes its statutory responsibility seriously and it is my intention to ensure full compliance. In light of the lessons brought to my attention as a result of this case, the authority will review internal processes to ensure that best practice is adhered to at all times. In particular, I intend to ensure that every child's care plan for each LAC review contains details of the current contact arrangements. I am confident that my managers will share my commitment to effect appropriate change."

[14]Judges should avoid cynicism, but I cannot help observing how often in recent decades one has read and heard of local authorities learning lessons and proposing to review internal processes to ensure that failures will not happen again. The essential failures in this case almost beggar belief. Over a period of several months last year this local authority seem to have got themselves into a position whereby they were proposing to act, and then did act, in direct breach of the order of the court, which, I stress, had originally been made for reasons with which the local authority themselves agreed. There seems to have been a great lack of communication between a range of different professionals such that in the end no one knew what had been decided by whom or when or why, and everyone seems completely to have overlooked, at any rate until the professionals’ meeting on the 11th December 2013, that there was in place a very clear court order in relation to these children. Mr Rex Howling QC himself has said this morning that there was in this case "systemic corporate failure".

[15]It provisionally appears to me that the failure goes even further. Since amendments were made to the Children Act 1989 in 2008, local authorities have been required to appoint an "independent reviewing officer" for the case of every child whom they are looking after. By section 25B of the Children Act 1989 the first listed of the duties and functions of the independent reviewing officer are to "monitor the performance by the local authority of their functions in relation to the child's case". The whole point and purpose of the system and machinery of independent reviewing officers is precisely to keep the local authority (who are no doubt extraordinarily busy and overworked) on their toes and to be asking awkward questions. An independent reviewing officer clearly had been appointed in relation to all seven of these children, although I do not currently know the date when she was appointed. In all or most of the minutes of meetings throughout 2013 that are exhibited to the statement of Miss Walker dated the 15th April 2014 there are clear references to a named independent reviewing officer being present at a whole series of meetings. Specifically, the independent reviewing officer was present at a meeting on the 29th October 2013 in the minutes of which the following passage appears:

"[The sixth of the children] is one of seven children. She and her five older siblings had regular contact but a decision was made to stop this contact and she has not seen her siblings since July. It is not clear how this decision was made and it is a concern that contact should stop without adequate preparation. [The social worker] will discuss restarting contact with the siblings with her manager and the IRO will also ask that it start again. Ideally contact should take place again and then a farewell contact arranged for all the siblings at a time appropriate in terms of the adoption plan."

So just pausing there, that is a minute of a meeting at which the independent reviewing officer was present which records that, for reasons which were "not clear", the contact had stopped since July. It is true that the minutes then record that the IRO will ask that it start again, but they go on clearly to contemplate that contact would take place again "and then a farewell contact arranged …". So the question inevitably arises, how was it that the independent reviewing officer, whose statutory duty was to monitor the performance by the local authority of their functions in relation to these children, was not saying loud and clear at the meeting, and subsequent to the meeting, that there could not lawfully be a farewell contact unless and until this matter had first been raised with the court? Instead, the minutes record that "The IRO is in agreement with the plan."

[16]It provisionally appears that the role and involvement of the IRO in this case failed to give to all these children the protection which her role was intended to afford. However, the IRO in question (whom I have deliberately not named in this judgment) is not present and may, to date, know very little about recent events in these proceedings. I accordingly intend to make an order today that she must file and serve a detailed statement in which she:(i) states the date of her appointment as IRO in this case;

(ii) identifies for which children she is IRO [although I have been told today that she is the IRO for all seven];

(iii) specifies the date and scope of every meeting attended by her since her appointment;

(iv) explains in detail and in full when and how she first became aware of any decision by the local authority to terminate contact between the five eldest and the two youngest children;

(v) explains in detail and in full when and how she first became aware that contact between the five eldest and the two youngest children had in fact been terminated or suspended; and

(vi) describes what steps, if any, she took to ensure that the local authority did not act in breach of paragraph 3 (b) of the order of Charles J made on the 8th May 2012 with regard to inter-sibling contact. So far as that aspect of the case is concerned, one can only wait and see what emerges.

[17]On behalf of the London Borough of Haringey, Mr Howling, both by his written position statement dated today and also by his oral submissions today, has made the following points and submissions. First, he stresses that the local authority have taken very seriously the thrust of my order last Friday requiring them to produce a statement and all relevant minutes and records. He says, and I readily accept, that considerable resources, time and effort have been thrown into addressing the concerns which I expressed last Friday. Second, he says, however, that despite a "thorough trawl" through the minutes and records it remains the position that the local authority cannot identify when, where or by whom the fateful decision was taken, nor can they explain why it was not fully and properly minuted. He has said that the lesson for the local authority is "the need for an audit trail" and at that point said that there had been "systemic corporate failure". Third, he submitted that the main lesson to be learned is that local authority minutes need to include with every minute the current contact arrangements and the details of any relevant court order.

[18]I cannot help feeling that this is, frankly, a very elementary point that one would have thought was part of the basic training of any social worker. Precisely because local authorities are under-resourced and over-stretched, and precisely because individual social workers and other staff members may come and go from a particular case (and I am very conscious that the present social worker was only first involved in this case last October), it is of the utmost and blindingly obvious importance that reliable, detailed records need to be maintained of every important decision, when it was taken, by whom it was taken, and why it was taken. I would have thought also that it was blindingly obvious that if there is a court order having ongoing impact on a case (as an order for contact does) then that should be very prominently attached to every file and, frankly, every important minute or record in a case such as this. On behalf of the local authority, Mr Howling has repeated the apology that is expressed in the statement of Miss Walker at paragraph 21 that I have read. He says that an apology is due on two levels. One is to the court, and the other is to the children concerned. I am, frankly, least bothered in this case about an apology as such to the court. But as these children grow up, and when they are adult, each of them will need a clear narrative and explanation as to events that took place in their lives and, so far as the present matter is concerned, how it came about that the five eldest lost all direct contact with the two youngest. In my view, some very clear and abject documents need to be prepared by this local authority, addressed to each of these children, explaining to them these events and how it all came about, and apologising to them.

[19]Apologies are also due to the parents of these children. It is perfectly true that both parents are currently serving prison sentences for, as I understand it, offences against some of these children. It is perfectly true that under the order of, I think, Charles J, neither parent is currently entitled to any direct contact with any of their children. But they remain the parents of the children and they share parental responsibility for these children with the local authority. They continue to be concerned about the welfare and wellbeing of their children. The mother, in particular, has made recent statements in which she repeatedly implores that direct contact be maintained between all seven of her children. It is unclear whether she knows even now that that contact had already been broken. I do not know her reaction to it, for her solicitors and counsel have not yet been able to obtain instructions from her because of the difficulty of access to her in prison. But she and the father knew and know that in May 2012 a High Court judge, for the reasons he gave, made the order that he did with regard to direct contact. They were entitled to assume that the London Borough of Haringey would obey the order of the court. They, too, would be justified in feeling surprise and shock, and probably much more extreme emotions, on learning that, in defiance of that order, that contact has now completely ended. So, in my view, the London Borough of Haringey owe and must convey abject apologies also to the parents of these children.

[20]I have already given directions for a three day hearing starting on Tuesday, 1st July 2014 both on the issue of changes of names for the two youngest children and on this issue of inter-sibling direct contact. As I have said, it may now be too late to unscramble the egg on the issue of contact, and the local authority may most probably have created a fait accompli. I am not scheduled to be the judge who hears that hearing due to other commitments. It is probable, therefore, that today is my last personal involvement in this case. I can only say that I part from it with a sense of the utmost despair that a terrible thing has happened in relation to all these children which should never, without due consideration, have been allowed to happen. _________