A CAREFUL APPROACH IS NEEDED TO THE GATHERING OF EVIDENCE AND THE SIGNING OF WITNESS STATEMENTS: A LOCAL AUTHORITY FALLS WELL SHORT OF THE MARK

It is unusual for this blog to cover family cases, particularly decisions made some three years ago.  However the judgment of HHJ Corbett in E (A Child : Care proceedings : Costs) [2017] EWFC 118 has recently been published on BAILLI and it highlights the importance both of the statement of truth and the need to ensure that the person signing a statement is, in fact, the author of that statement.  Underlying this was a fundamental failure to appreciate the nature of witness evidence and the scope of evidence that any one individual can give.   This is always a matter of concern.  Even more so when it could have led to a child being permanently separated from their parents.

 

THE CASE

The local authority brought care proceedings in relation to a child.  A witness statement was served by the local authority. At, what was supposed to be, a final hearing,  it became clear that there were difficulties with the evidence that the local authority had filed.

THE LOCAL AUTHORITY’S EVIDENCE

The judge described how the hearing had taken an unexpected turn when a social worker declined to support a statement that was in her name and counsel for the local authority withdrew because of professional embarrassment.

“On that day I was told by counsel then acting for the Local Authority that the previously allocated social worker who was due to give evidence was ‘reluctant’ to give evidence and that an issue had arisen as to the extent to which the contents of a statement in her name, the final evidence, was in fact her evidence.  After giving the Local Authority counsel time to take instructions, which took most of the morning and into the afternoon, I was told by her that the Local Authority were not relying on the evidence of that social worker and they no longer intended to call her as a witness, that they would call instead the newly allocated social worker to speak to the Local Authority’s care plan.  Local Authority counsel then informed the court that she was professionally embarrassed, and I gave her permission to withdraw from the case. “

 

WHOSE EVIDENCE IS THIS?

The judge described the situation where a social worker, initially, had misgivings about giving evidence. The local authority’s barrister withdrew, however the next day the in-house advocate for the local authority indicated that there was, in fact, no problem.
  1. On the next day, day four of the listed hearing, 19 January, I was told by the new in-house advocate who appeared on behalf of the Local Authority that the statement in the bundle was in fact the evidence of the previously allocated social worker and that the Local Authority would be able to establish this and the Local Authority did wish to rely on her evidence.  The Local Authority was unable to inform the parties and the court why there had been this change in their position.  Despite my hearing on 19 and 20 January, further evidence about the drafting, amending and filing of the Local Authority evidence, I was left with grave concerns about the state of the evidence. It was clear by then that the listed final hearing could not be completed or even get substantially underway.  I noted in my order of 25 January that the timetable for J was again extended to a final hearing the week commencing 19 June, ‘this is because of difficulties that arose during the listed final hearing regarding the reliability and provenance of part of evidence which has necessitated court enquiry into whether there has been any abuse of procedural fairness on behalf of the Local Authority in this matter’.
  1. I directed that there be transcripts of the hearing from 16-20 January, obtained and funded by the Local Authority.  At the hearing on 20 January, the Local Authority agreed to fund a Domestic Violence Intervention Programme, which was welcomed by the parents.  In addition, on that day, I found it essential and necessary for the court to direct that an independent social worker undertake a parenting assessment, ‘due to the court’s concern regarding how the Local Authority potentially prepared its evidence, and what was said by the Local Authority about the status of the social worker’s evidence at court and whether it did or did not rely on her parenting assessment of the parents, thus giving rise to a potential procedural irregularity’.
  1. I also provided in this order for an addendum by Dr Newman to be filed after the DVIP interim report.  Further, I directed that the Local Authority file and serve statements from a number of employees and former employees.

TRYING TO GET BLOOD OUT OF A STONE

The judge then described subsequent events, with a series of orders being made in an attempt to find out what had happened.

Events since 20th January 2017:
  1. Since then, there have been, at the majority of the hearings, two orders drawn, one a traditional case management order and also an order regarding the enquiry into the issue of procedural fairness.  A separate bundle was created which contains documents relating to the issue of procedural fairness.  This ran alongside the main bundle.
  1. I am conscious of the decision of the Court of Appeal in Re W (a child) [2016] EWCA Civ 1140.  Further, in light of the Local Authority’s collective acceptance of responsibility for its failures in this case, and their concessions made, and the anticipated claims (not yet issued) pursuant to the Human Rights Act by J and her mother, which I shall detail in a moment, I do not propose to say any more about what took place in court from 16-20 January 2017.
  1. Since the adjourned hearing in January, I have had to conduct approximately 10 hearings. I have attempted to investigate as to why the final hearing could not go ahead in January, which has taken up the large majority of the court’s and the advocates’ time.  The court orders detail how much effort was put into the obtaining of evidence from this Local Authority.  Sometimes having to be ordered again and again due to shortcomings in an earlier document filed by them.  For example on 3 February, a direction I made that the Local Authority manager file a statement led to a direction on 15 March that the court’s direction be complied with, as in my judgment, the statement had not contain the necessary information for the court. 
  1. The Local Authority filed a ‘concessions document’ for a hearing listed on 18 May.  By this date they were represented by Mr Momtaz QC.  The Local Authority at the hearing on 18 May were urged by the court to consider their concessions document further which they did.  Their updated concessions document is dated 22 May, prepared for an issues resolutions hearing on 24 May. 
  1. The suggestion of the Local Authority instructing independent counsel to carry out a review had been one of the suggestions made on behalf of the Guardian by Ms Youll.  I considered that it was a suggestion that had merit and I encouraged the Local Authority to consider this when the matter came before me on 18 May.  By 22 May that indeed was their position.
  1. By this point, the independent social worker, Ms Ware, had almost completed her investigations and it appeared highly likely that she would be recommending return of J to her parents’ care.  This did appear to be the probable final outcome for J, but updated reports were still awaited at that point from the other experts.
  1. I heard submissions on 24 May about what sort of hearing I should conduct thereafter.  In an order made that day I record that I approved the Local Authority’s proposal to conduct an independent review by independent leading counsel, Janet Bazley QC, ‘to establish what went wrong in J’s case and whether there are wider implications in other cases involving the London Borough of Hillingdon and to make recommendations for good practice in the future’.  I declined to hold a fact-finding hearing to determine the procedural irregularity issue due in part to the delay that this would cause to J’s proceedings, and in part because I had accepted the proposal that Ms Bazley QC carry out an independent review.
  1. Turning to the document headed ‘The Local Authority’s Updated Concession Document 24 May 2017’ which I consider deserves to be read in full.
‘1. The Local Authority, having further reviewed the evidence it has filed in respect of the procedural irregularity issue and considered the comments made by the court at the hearing on 18 May makes the following concessions:
  1. It was wholly unacceptable for the Local Authority to file a number of documents, statements in particular unsigned and undated.
  2. It was wholly unacceptable to file some statements without a statement of truth.
  3. The Local Authority should have clearly identified authorship of a number of joint documents, in particular the final statement dated 24 October 2016, the child and family assessment dated 12 October 2016 and the special Guardianship assessment dated 26 October 2016.  The documents should have been much clearer as to which individual was responsible for drafting each part of each document. 
  4. The process of revision which produced the final version of the statement dated 24 October 2016 went over and beyond the normal quality assurance process and the statement was significantly amended including removing some positive evidence in relation to the parents.  This was wrong and should never have happened.
  5. The final version of the final statement dated 24 October 2016 which was filed and served was substantially different to the version drafted by the allocated social worker, who did not see or sign the statement before it was filed.
  6. It would have been a reasonable assumption for the other parties in the court to make that the statement which was filed was largely, if not completely the evidence of the allocated social worker. 
  7. The Local Authority took insufficient steps to rectify the errors accepted at d-f above between the end of October 2016 and the beginning of the final hearing in January 2017.  In particular, given that the allocated social worker had left the Local Authority’s employment shortly after the statement was filed, the Local Authority should have sent the social worker the evidence which was filed in her name well before the final hearing started so that she could have the opportunity to refresh her memory and raise any queries in relation to her evidence in good time for the final hearing.
  8. In the absence of the formerly allocated social worker’s oral evidence provided on 20 January, it was wrong for the Local Authority to inform the court on 19 January that the final version of the statement was entirely the social worker’s statement; that she approved it and that it was able to evidence that.
  9. The Local Authority was wrong to describe the social worker as hostile.
  10. The Local Authority was wrong to inform the court that their counsel had, ‘slightly misinformed’ the Assistant Director.
  11. The Local Authority was wrong to waive legal privilege on 19 January.
  12. The Local Authority was wrong to seek to rely on the social worker’s evidence even on 19 January, given the difficulties with the revision of the statement which has been accepted above. 
  1. The Local Authority sincerely apologises to the court and to the parties for all these errors.
  1. The Local Authority accepts that these errors will have cost implications and invites the parties to provide a schedule of their costs for the final hearing in January and all subsequent hearings.  The court will, in due course, be referred to the Supreme Court decision in Re T (Children) [2012] UKSC 36.
  1. The Local Authority fully accepts collective responsibility for its failures in this case and submits that it is not necessary for the court to make findings against its individual employees.  However, if such findings are sought, they are likely to have an impact on the professional standing and even job prospects of each professional.  In such circumstances, each professional would need to know what findings are sought against them and have access to independent legal advice.  The court is referred to the case of Re W (A Child) [2016] EWCA Civ 1140.
  1. It is not accepted that there was a culture or ingrained procedure within the Local Authority which regularly produces tainted or unbalanced evidence.  The court has expressed some concerns as to whether similar situations may have arisen in other cases.  Over the last year there have been 39 final hearings in care proceedings involving this Local Authority.  In 28 of those cases, the final statements were signed by the social workers.  Further, the Local Authority submits that the problem would have come to light if repeated in other cases.  Professionals take a solemn oath to tell the truth before giving evidence.  The Local Authority submits that it is inconceivable that any reputable social worker or indeed any professional, would adopt any document not their own.

THE STEPS TAKEN TO PREVENT THIS HAPPENING AGAIN

  1. The Local Authority has taken proactive steps to ensure that the errors made in this case would not be repeated in future including, but not limited to;
  1. Ensuring no unsigned or undated statements are filed within proceedings.
  2. Ensuring that every statement has a statement of truth, particularly where the Local Authority evidence is not included in the national social work evidence template.
  3. Ensuring that authorship of every part of a document, particularly where documents are prepared by more than one person, is clearly identified on the fact of the document itself.
  4. Ensuring that the final statement and care plan are read and approved by the head of service or deputy director. 
  5. Ensuring that all professionals who have left the Local Authority’s employment prior to any hearing at which they give evidence, receive any evidence in their name at least seven days before such hearing so that they can properly refresh their memories and if necessary raise any issues as to the provenance or accuracy of their evidence.
  6. Providing independent training for all the Local Authority social workers and team managers as to the importance of producing balanced evidence and in particular, comprehensively identifying both the strengths and weaknesses of parenting capacity on the national social work template for final evidence.
  7. Instructing independent counsel to undertake an independent review in order to establish what went wrong in this case and make recommendations for good practice in the future’.