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England and Wales Family Court Decisions (other Judges) |
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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> Local Authority in Wales v Grandmother & Ors [2024] EWFC 227 (B) (07 May 2024) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2024/227.html Cite as: [2024] EWFC 227 (B) |
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5th Floor Clarence House Clarence Place Newport NP19 7AA |
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B e f o r e :
____________________
| A Local Authority in Wales |
APPLICANT |
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| - and - |
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| Grandmother |
(1) RESPONDENT |
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| Grandfather |
(2) RESPONDENT |
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| Mother |
(3) RESPONDENT |
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| Father |
(4) RESPONDENT |
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| CHILD (VIA THE GUARDIAN) |
(5) RESPONDENTS |
____________________
Miss Heyworth KC and Mr Jones on behalf of the Applicant Local Authority
Ms Reed KC and Miss Morgan on behalf of the First Respondent
Miss Hughes KC and Miss Chamberlain on behalf of the Second Respondent
No attendance by Third or Fourth Respondents
Miss Jones on behalf of the Third and Fourth Respondent Children
Miss Knight on behalf of A Welsh Police Force
____________________
Crown Copyright ©
Introduction
The child
Essential Background
AND UPON the Court recording that it heard oral evidence from a Police officer and a disclosure officer from the Welsh Police force. The parties and the Court considered that it was necessary to hear oral evidence as a result of the information provided by the investigating officer, that they had requested information from another officer, including the ABE interview assessment booklet but had received no response. The parties and the Court considered that it was necessary to hear evidence from the disclosure officer, so as to understand why confirmation had been provided that all disclosure had been provided when that wasn't the case and for the Court to understand what if any communication takes place between the Officer in the Case and the Disclosure Unit, in light of the investigating officer informing the advocates in January 2024 that "there is no communication between the disclosure team and me."
AND UPON The Police Officer admitting in evidence that she had made a number of errors in her conduct of the case and thereafter. And upon the Police Officer informing the Court that she still has items stored in her locker at the Police Station relating to the case, including the ABE Witness Booklet for the complainant, that she thought she would have scanned onto the system before she left CID and she thought she would have provided to the investigating officer. The Police officer also thought that she would have replied to any emails from the investigating officer. The Police Officer informed the Court that she would retrieve the items and provide these to the disclosure unit in accordance with paragraph 4 below. The Police Officer has further confirmed that whilst she will check her 'blue book' for any notes relating to this case she does not have any separate handwritten or electronic notes of interactions with witnesses or complainants in the case save for as set out in the ABE booklet and the occurrence log. She has also confirmed that she will check her professional email account (although advised that all emails over 12 months old are automatically deleted) and her police OneDrive account for any records and/emails related to this case and will disclose them.
AND UPON The Police Officer confirming that the "book" she refers to in the ABE interview of the complainant is simply a book that she had used to press on whilst taking notes and the only other document she had in her possession was the ABE interview booklet, which has not yet been disclosed.
AND UPON the disclosure officer giving evidence to the Court that despite the Family Court Orders requesting disclosure of "all documents" held, unless documents are specifically listed, the disclosure unit does not search for, or disclose, all documents held and that was the procedure adopted in this case. And upon the disclosure officer confirming that it was therefore likely that documents were missing from the disclosure provided to date and agreeing to provide full disclosure in short order.
AND UPON it being recorded that when this case was before the Court on 15 January 2024 the investigating officer attended the hearing on a witness summons. They did not give oral evidence, but discussed the records available in this case in the presence of all of the advocates and the solicitor for the Local Authority and confirmed during that discussion, and in a subsequent statement, that she does not have any separate handwritten or electronic notes to supplement the occurrence log entries beyond the material she has provided from her 'blue book' and questioned why she would need to take notes. Further, the investigating officer:
- Was unable to provide the dates that disclosure witnesses were put forward by the complainant
- Confirmed that she had spoken to the complainant many times and had also spoken to 2 of the grandchildren and a number of 'disclosure witnesses' whose details had either been provided by the complainant or obtained from the material within the Annex C request, but did NOT take any notes, indeed she asked "why would I take notes?".
- Confirmed that she did not know when she had spoken to 2 of the grandchildren unless it is detailed in the occurrence log.
- Confirmed that she had spoken to "disclosure witnesses" who are not named in the occurrence log but could not provide any details of when she had spoken to them and had not taken any contemporaneous notes or entered any details of her conversations with those persons in the occurrence log.
- Explained that she makes a short entry in the log that is made from memory and can sometimes be entered several days after the discussion.
- Confirmed that there were several platforms upon which documents could be saved, including the Logs and a U drive. Anything pre-2017 was held by the Records Management Team.
- Stated an investigation of this type would take around 3 years.
- Confirmed that that she could not find the ABE assessment of the complainant. She said that the previous OIC may have had a paper file, but she didn't know where it was and the officer had not responded to any of her requests for information. She said that the ABE assessment could be anywhere; it could be in the officer's office, the writing room, or scanned on to the officer's own device.
- Confirmed that she had not provided the documents she had obtained via an Annex C request but could provide a list.
- Confirmed that the texts between the Police officer and the complainant would have been sent on a works phone and were not saved to the investigation log and therefore she did not have a copy.
- Stated "there is no communication between the disclosure team and me" and confirmed that there was therefore no way of them checking what they had and were disclosing everything that she has in relation to the investigation, to the Local Authority.
AND UPON it being recorded that the investigating officer filed a statement dated 18 January 2024, that contained a list of documents relating to the investigation that spanned 5 pages. And upon the Court noting that the list contained items that had not been disclosed into the Family Proceedings to date, despite numerous orders made for full disclosure.
Issues
a. The Local Authority failed to ensure that expectations were clear in the period following the revival of the allegations.
b. The Local Authority knew from the original referral in August 2022 that the allegations had previously been made to social services and withdrawn. The Local Authority failed in its duty to analyse the information and to look at the historical files held either in archive or electronically in a timely manner.
c. The Local Authority failed to seek legal advice sufficiently promptly – no meeting was convened until 1 September 2022.
d. The use of Police Powers at the instigation of the Local Authority was inappropriate.
e. The significant delay in issuing cannot be explained.
f. The decision to go to PLO cannot be explained.
g. There were several key decision making meetings held where there was no reference to the fact that the complainant had previously made allegations regarding sexual abuse perpetrated by the grandparents during care proceedings in respect of her children. This is the case even though this information was known to the Local Authority and was considered as part of the strategy discussions held in August 2022;
h. The Local Authority took no action to consider its own records and what this information might mean in terms of the assessed risk of significant harm to the child, and the proportionality of any action required to safeguard him whilst investigations were ongoing.
i. Even when the grandparents' solicitor raised the history of the allegations and their withdrawal the Local Authority failed to act and check the records.
j. The decision to conduct a connected carer assessment prior to issue was 'flawed' because there was still the key matter of the historic sexual abuse allegations that needed to be resolved regardless.
k. There was a complete reliance throughout on the outcome of the police investigation, with the Local Authority seemingly believing its hands were tied whilst the investigation was ongoing. Looking at the correspondence with the Police it is also clear that there was a breakdown in the information sharing protocol. That being the case, an application to issue proceedings should have been made at a much earlier stage.
l. The delay in issuing denied the child the opportunity of having a voice within the process;
m. There were several key points where the Local Authority should have been alerted to the need to take action to bring matters before the court to avoid delay for the child. These were missed. The delay in issuing is indefensible.
n. The change of placement pursuant to section 76 but without the knowledge or consent of the Grandparents was wholly unacceptable.
i. Withdrawal application
ii. Original decision to remove the child and the police PPO
iii. Decision making thereafter and delay in issuing (including seeking a threshold finding of a risk of significant harm from the grandparents' health)
iv. LA actions during proceedings including in relation to disclosure
v. Reunification of the child with his Special Guardians.
1) This rule applies to applications in proceedings –
(a) under Part 7.
(b) under Parts 10 to 14 or under any other Part where the application relates to the welfare or upbringing of a child or.
(c) where either of the parties is a protected party.
2) Where this rule applies, an application may only be withdrawn with the permission of the court
the Children Act 1989 s 31(2) for making a care or supervision order then the application to withdraw must succeed. In the second category, if threshold could be established, then an application for withdrawal will be determined on a welfare basis by considering whether withdrawal is consistent with the welfare needs of the child.
can never trump welfare, it is nevertheless a factor to which proper consideration must be given. The decision is a case management decision, and the court should apply the approach set out in Re TG (Care Proceedings; Case Management: Expert Evidence) [2013] EWCA Civ 5.
Analysis
a. The complainant is the only person who has definitively made allegations against the grandparents.
b. She is now in her mid fifties. When she was in her late twenties, in the late 1990's , she made serious allegations of sexual assault against the grandparents.
c. The history of how the allegations came to be known is [dates redacted but presented in chronological order]:-
i. Late 1990's the complainant first mentioned in care proceedings relating to her own children that she had been sexually abused by the grandparents. Records indicate that she was reluctant/indecisive when spoken to. She said that her allegations were true but refused to make a complaint to the police.
ii. Late 1990's – following the making of the allegations, the grandchildren, who had been in the care of the grandparents were removed.
iii. Late 1990's - a strategy discussion recorded that the complainant said that she was sexually abused by her father from aged 14-16 years. She alleged that she had informed her mother who did not believe her. The Guardian, allocated in proceedings, said that the complainant had told her that she had also been abused by her mother, but she was unclear about the detail.
iv. Late 1990's - at a further strategy discussion it was noted that the complainant declined to make a statement and that there was no consistent version of events.
v. Late 1990's – the task of assessment was taken over by a new social worker The assessment process had initially been commenced by another social worker .
vi. Late 1990s – the complainant tells professionals that she has lied. She is said to be upset.
vii. Late 1990's – the complainant is noted to repeat her retraction.
viii. Late 1990's - the complainant discusses the allegation of sexual abuse with a counsellor; the counsellor opines that they believe the complainant.
ix. 23.11.99 - Risk assessment completed by the social worker outlined the reasons the complainant asserted that she had lied about the allegations of sexual abuse. She listed the following reasons:
1. she had lied to friends;
2. she wanted attention;
3. she had been drunk;
4. she had wanted to feel important;
5. she had been very unhappy;
6. it had led to a trivialization of her own problems.
7. she said that sexual abuse was an easier thing to talk about.
8. she said that she had heard others describe sexual abuse.
9. she had wanted her partner to think that she had a poor relationship with her family just as he had a poor relationship with his family.
During the risk assessment the complainant reinforced the reasons for making the allegations up were that she was feeling unhappy; she was fearful of her parents having a better relationship with her children; she was fearful of being rejected by her children' and she was jealous of her parents and she resented them for shutting her out.
The risk assessment concluded that the children of the complainant could and should return to the care of the Grandparents which they did.
d. The complainant made no further reference to her allegations of sexual abuse until August 2022. The records suggest that the catalyst for her raising her allegations again is cemented in her belief that another grandchild who had been cared for by the Grandparents, had herself alleged that her grandfather had sexually abused her. The grandchild has made it clear to the Local Authority and the police that she wishes to play no part in these proceedings. She has never made a formal complaint.
e. The complainant was interviewed by the police in October 2022 and made serious allegations of sexual abuse.
f. The police took statements from a number of witnesses [names redacted]. None of these witnesses were told at the time of the alleged abuse but many years later.
g. The Onyx booklet notes that the complainant stated that the abuse started when she was 16, that it would take place in her bedroom and when she was 16, she was made to do stuff with her mum.
h. The allegations are denied by the grandparents. They denied the allegations in the late 1990's and maintain that position to date.
i. The grandparents were assessed when being considered as long term carers for the child in this case in 2018. As part of that assessment the complainant and grandchildren were spoken to by the assessor. In respect of the complainant it said [name redacted in quote]:
"The complainant feels that the grandparents did an amazing job bringing up their grandchildren and never kept her out of the loop. The complainant confirmed that she experienced a normal childhood which included routines, quite strict boundaries and they were quite protective parents. They were always involved with school and attended concerts and parents' evenings. Family is everything to them. The complainant feels despite their age they will give the child a good life….she has no concerns for his well-being".
In respect of the grandchild it said:
"The grandchild said they and their siblings owe a great deal to the Grandparents who went through a lot of stress and heartache to keep the siblings together. They spoke of the allegations that the complainant made towards their Grandparents and how she caused all of the family to suffer. They marvel that the Grandparents were strong and managed to do what they did for them all when placed under such terrible stress. They feel that the grandfather values honesty, the grandmother is nurturing, protective and understanding. As a teenager they described themselves as a bit of an arsehole and felt they did go off the rails for a while. However, she always felt she could talk to the Grandparents and despite this difficult period in their life, they stood by them , continued to parent them and did their best to keep them safe".
i. It is clear that the allegations are the complainant's word against the grandparents.
ii. There is no independent or forensic evidence to support the allegations.
iii. There are a number of evidential hurdles.
iv. There is the original complaint, followed, almost immediately by a coherent retraction.
v. The complainant was aware that her retraction was almost certain to result in the grandchildren being cared for by her parents.
vi. The complainant supported the grandparents' desire to care for the child.
vii. The allegations lay as unfounded allegations for over 20 years seemingly to be resurrected after one of the grandchildren is thought to have made an allegation of a sexual nature against the grandfather.
viii. The grandchild has been unwilling to engage in this or any criminal process. They supported her Grandparents in their desire to care for the child.
ix. The complainant found it enormously difficult to consider the allegations and retractions, she expressed a wish to give evidence but also a doubt as to her robustness to see the process through.
"Grandfather expressed that the complainant has been blackmailing Grandparents for money. The complainant had her children removed. Some of the children lived with the grandparents and they brought them up into their 20's. 30 years ago the complainant made an allegation of sexual abuse against the grandfather from when she was a teenager and then retracted this as she was told the children would be adopted and she didn't want this. Children were returned to the grandparents and now the same thing is happening."
"193. I agree entirely that it is the statute and the statute alone that the courts have to apply, and that judicial explanation or expansion is at best an imperfect guide. I agree also that parents, children and families are so infinitely various that the law must be flexible enough to cater for frailties as yet unimagined even by the most experienced family judge. Nevertheless, where the threshold is in dispute, courts might find it helpful to bear the following in mind:
(1) The court's task is not to improve on nature or even to secure that every child has a happy and fulfilled life, but to be satisfied that the statutory threshold has been crossed.
(2) When deciding whether the threshold is crossed the court should identify, as precisely as possible, the nature of the harm which the child is suffering or is likely to suffer. This is particularly important where the child has not yet suffered any, or any significant, harm and where the harm which is feared is the impairment of intellectual, emotional, social or behavioural development.
(3) Significant harm is harm which is "considerable, noteworthy or important". The court should identify why and in what respects the harm is significant. Again, this may be particularly important where the harm in question is the impairment of intellectual, emotional, social or behavioural development which has not yet happened.
(4) The harm has to be attributable to a lack, or likely lack, of reasonable parental care, not simply to the characters and personalities of both the child and her parents. So once again, the court should identify the respects in which parental care is falling, or is likely to fall, short of what it would be reasonable to expect.
(5) Finally, where harm has not yet been suffered, the court must consider the degree of likelihood that it will be suffered in the future. This will entail considering the degree of likelihood that the parents' future behaviour will amount to a lack of reasonable parental care. It will also entail considering the relationship between the significance of the harmed feared and the likelihood that it will occur. Simply to state that there is a "risk" is not enough. The court has to be satisfied, by relevant and sufficient evidence, that the harm is likely: see In re J [2013] 2 WLR 649."
Original decision to remove the child and Police Powers of Protection
"(1) where a constable has reasonable cause to believe that a child would otherwise be likely to suffer significant harm, he may (a) remove the child to suitable accommodation and keep him there; or (b) take such steps as are reasonable to ensure that the child's removal from any hospital, or other place in which he is then being accommodated is prevented."
"the provisions of the Act aim to strike the proper balance between the provision of speedy and effective help to children at risk and unwarranted interference in family life. The underlying principle of the Act is that the welfare of the child is paramount".
"police protection is an emergency power and should only be used when necessary. The principle being that wherever possible the decision to remove a child/children from a parent should be made by a Court".
"There are a whole range of remedies before enforced separation, which is the absolute last resort. Decisions as to whether that protection is necessary should be made by a court, and decisions as to what course is the least interventionist necessary should be made by a court. There was a duty, it seems to me, not just on the social worker but on the police themselves to look at the route into protection."
"It is not suggested that the issues raised in this case should not have been investigated. What is criticised is the way the information has been presented, both before and after the issue of proceedings, and the process that was used by the LA. It has graphically illustrated the dangers of not rigorously analysing the evidential foundation for and against any allegations made and not exercising a balanced judgment. Due to the complexities of the case it required strong, experienced leadership from the LA who hold primary responsibility for safeguarding issues. Put simply, that was not provided and there was no check on the structures that failed to provide what was required in this case."
"In reviewing WCCIS it can be seen that the child is thriving in the care of his Grandparents and that he was removed from the care of his parents. Now the complainant has made this allegation of sexual abuse against the grandparents. It can also be seen that the child has a life limiting illness and his Grandparents are able to meet his complex needs. Advised that I would be very reluctant to move him and that I would prefer that we discuss a safeguarding adult to be present at the home pending further investigation."
"We discussed that the complainant has alleged sexual abuse by the grandparents perpetrated when she was a child. That they had said that they had reported this before to social services but that grandfather put pressure on them to withdraw the allegations or he would ensure that they do not see their children who he was caring for at the time. As the allegations are against both parents it is felt more measured and proportionate to find a safeguarding adult to stay with the child in his own home and supervise the Grandparents."
"The identified safeguarding adult also resides at the address and is a legacy guardian for the child. He is aware that any contact between the child and his Grandparents needs to be supervised by him. A full Strat will need to take place AM and actions agreed."
"Concerns have also been raised around the three-year-old child living at the address"
Social services have been de-briefed about the circumstances of what has been alleged, they have given information about the child whereby they state that he is on their system, but the case of the family is now closed as there were no concerns raised regarding the child living at the address and in fact the family received a "GLOWING REPORT". The child does however have a life limiting illness and therefore they are reluctant to move the child from the address due to the care he requires. They have stated that grandmother will need to be informed about the disclosure and will need to be told to supervise contact between the child and grandfather; A DS is currently discussing options and POA with them."
"The complainant states that she did disclose this to social services many years ago, but grandfather used the children to emotionally blackmail her by stating that if they went ahead with the report, then the children would be adopted, and they would not be able to have contact. The complainant's children all resided with the grandparents at the time. The complainant also states that she told the grandmother what was going on but was accused of lying, although the incident involving grandmother did not get discussed after it happened."
"I replied to grandmother I knew nothing about this and would make some enquiries and come and see her later on".
"There is a legacy carer in the property – who has been managing levels of supervision over the weekend – however he works away/works long hours travelling over the country but returns home each evening. Was living with his partner as they have a child however recently separated. However legacy carer doesn't overly have much to do with the child – he is able bodied but does have a life limiting illness. Speech delayed. Carers are in their 70s – have been struggling with managing the child … Support worker visits every week/fortnight, no concerns with home conditions and the child has everything he needs."
"Female carer made contact with the support worker this morning and advised of circumstances – Grandfather query saying that he was handing child back to SSD – query not understanding the process. Given the concerns, it is felt that the child needs to come into a LAC placement during the interim until further circumstances known. As SGO in place, then carers will need to give S.76 consent parents also need to be informed of the circumstances and contact attempted with them as they still hold element of PR. Ongoing Joint S.47 – with police, if carers don't give S.76 consent then PPP could be considered. Placement request form to be completed the support worker has been having continued involvement as per the SGO support plan. Support Worker in agreement to complete visit with DCT team today. Ongoing S.,47 – Social Worker confirms that police will not undertake visit with workers today, as their part of S.47 is currently being undertaken and no requirement for them to visit child – however if Grandparents will not provide S.76 consent then request that investigating officer is contacted re. request for PPP."
"she had been trying to ring the duty number and couldn't get through, I could hear grandfather in the background he sounded annoyed and then he came on the phone. The grandfather said the police got them out of bed last night saying an allegation has been made and they know nothing else. The identified safeguarding adult was asked to supervise them and social services would be out 9am in the morning. He said they waited in all day and nothing and the identified safeguarding adult got sick of it and said he was off to work as he was losing money. I explained to the grandfather that I didn't know the exact details of the allegation but it was important that the identified safeguarding adult remained with them today, the grandfather said its tough he's in work and we are in MacDonalds. I said to the grandfather social services will be out today they are trying to get hold of him and the grandmother, I passed the social worker's mobile onto them for them to ring. The grandfather said this is the complainant this is we had a falling out weeks ago and she is nasty cow. Soon as we say no to money that's it, her and the grandchild all about money. Few weeks ago they tried telling us how to deal with the child , how can they do that when they didn't even bring up their own we brought them up. I told them straight get out and don't come back. I asked grandfather l to leave the call and ring the duty number so arrangements could be made and he said he would. I informed the social worker that they were alone with the child and the identified adult was at work."
"Just to update we have agreed to seek an alternative placement we will need to seek section 76 consent from ca Should there be any issue would we have support from Police if needed such as PPP"
"Come back to me if they refuse and I will get police there …".
i. There had been no proper discussion with the carers of the child;
ii. No exploration of whether there were any alternative carers available;
iii. No checks of their own systems despite being on notice that these were allegations which had been made and withdrawn historically;
iv. There had been no apparent consideration of whether the legal department should be involved or whether proceedings should be considered if section 76 consent was not freely given.
v. No effective assessment of risk or assessment of the proportionality of removal.
"spoken to duty and they are coming at 3pm I said I would be there with them as well. She said she is not happy she was told the identified safeguarding adult was meant to be supervising them all this time and she can't find that in the paperwork. I explained to grandmother this was not the case it was since last night when the police came that's when he agreed to supervise them both. Grandmother understood then what I was saying. Grandmother said she doesn't know what all this is about and she is not happy with how it has been dealt with."
"15:00 –Joint home visit and S47 , I arrived at the home and knocked the door. I was aware that 2 social workers were on the way. The grandmother answered and looked tired but made conversation and said she feels let down but how things have happened she said they have no idea about the allegation. I assured the grandmother that she would be made aware but the police have to be the ones to inform her as there was an ongoing investigation. The grandmother said she felt this was the complainant as they have done this before and they fell out with them 2 weeks ago. The child was playing happily and they had been to MacDonalds.
The grandfather came downstairs and it was immediately clear that he was angry and upset. He said that he felt this was the complainant , they call them Billy liar as they tells so many lies. The grandfather said this happened before when they had the children in their care and she made an allegation about them, the kids were taken into foster care and then they retracted her so called allegation. He then went on to say that maybe it is the next door neighbour as he drove a young girl out of the street before as her kid kept crying and he reported her. He said the child had a huge let down the day before and he commented to grandmother that the police be knocking this door the way he is screaming. I assured grandfather that he would be informed about the allegation but by police as they were the ones with the information.
Grandfather said he was not in the mood for this and he knows all about social workers ruining people's lives and he would not be putting up with it. He said they can take the child now because we won't be supervised looking after him. He said they have given their lives to him and love him and care for him they would never hurt him. Grandfather was getting angrier waiting for the other social workers, he was pacing saying he will kill whoever did this.
The other social workers came and grandfather was not pleasant to them, he wouldn't let them speak and told grandmother to pack the child's things. She did start packing and the child got very upset he could hear grandfather telling grandmother he had to go.
I took the child and his toys into the next room to avoid him hearing this conversation. I could hear grandfather getting irate and he told the social workers to leave shouting at them and he locked the door. He was extremely angry and grandmother was crying whilst packing the child's things. I tried to reason with grandfather stating if he signed the forms then this would avoid the police coming and would show he is working with social services. He said no way was he signing anything he said social workers were idiots with no brains and they had been brainwashed and if he had to put up a I asked grandfather l to remain calm for the child's sake and he was hugging the child saying sorry. Grandfather kept pacing the room and had some scissors at one point, I asked him again to think about things and not do anything silly and he placed the scissors in a utensils holder on the sink.
The police came and I asked Grandfather for permission to answer the door, he said do what you like but don't let them social workers in. I opened the door and went back to the child to keep him busy.
Grandfather was getting really angry with the officers and the social workers again had to leave. A few minutes went by and things began to escalate, Grandfather got really angry and started shouting "Fucking take him go on get it done. The male officer said it was best for us to leave, I picked up the child and carried him and he started to cry. I was reassuring him and telling him I was coming in the car for a ride to a nice ladies house. I could hear Grandmother screaming behind me and crying on the door. I took the child to the car and got in with him and we went to the foster carers house. The child was fine in the car and asking where we were going I said we were going to see a lady called and he was going to stay there and play toys with her. The child warmed to the carer immediately and sat on her lap playing toys and wandering about the house. He was shown to his room and he seemed to be happy and settled when we left and got ready for the park.
I came back with police and we discussed a welfare check, police asked me to go to the door and knock but there was no answer. I came home and had a text message off Grandmother asking if the child was ok, I explained we had knocked the door, but no answer and she said she was out walking. I explained that the child was happy and settled and no longer upset, he was going to a park with the foster carer."
"tried to reason with Grandfather stating if he signed the forms then this would avoid the police coming and would show he is working with social services. He said no way was he signing anything."
"They did not adhere to this and the child has been on his own with the grandparents all day. Due to this, officers had reason to believe that the child may be at risk of immediate significant harm. The grandparents refused to sign any paperwork for Social Services to take full care of the child and therefore PPP were used … social services attempted to seek section76 consent from the grandparents to which they refused to do so. Due to this police were asked to attend to support social services. 2 Police officers attended and tried to speak to the grandparents and ask them to agree to signing social services section 76 consent."
Delay in issuing
"Section 20 may, in an appropriate case, have a proper role to play as a short-term measure pending the commencement of care proceedings, but the use of s20 as a prelude to care proceedings for a period as long as here is wholly unacceptable. It is in my judgment and I use the phrase advisedly and deliberately a misuse by the local authority of its statutory powers." [157]
"The misuse and abuse of section 20 in this context is not just a matter of bad practice. It is wrong: it's a denial of the fundamental rights of both parent and child. It will no longer be tolerated and it must stop. Judges will and must be alert to the problem and proactive in putting an end to it. From now on local authorities which use s20 as a prelude to care proceedings for lengthy periods or which fail to follow the good practice I've identified can expect to be subjected to probing questions by the court. If the answers are not satisfactory, the local authority can expect stringent criticism and possible exposure to successful claims for damages."
a. Where a parent agrees to the removal and accommodation of his or her child, that parent is simply delegating the exercise of their parental responsibility, for the time being, to the Local Authority;
b. Any such delegation of the exercise of parental responsibility must be real and voluntary. Delegation of the exercise of parental responsibility by a parent should not occur as the result of compulsion where the parent lacks the requisite capacity to decide to delegate parental responsibility or where an impression has been given to the parent that he or she has no choice but to delegate the exercise of parental responsibility. However, delegation can be real and voluntary without being fully informed;
c. Absent a real and voluntary delegation of the exercise of parental responsibility to it, the Local Authority has no power to interfere with the parent's parental responsibility by removing the child;
d. In any event, as a matter of good practice, Local Authorities should give parents clear information about what they have done and what the parents' rights are. This should include not only the parents' rights under s 20(7), (8), [s76(4) and (5)] but also their rights under other provisions of Children Act 1989, including the right … to know the whereabouts of their child. Parents should also be informed of the Local Authorities' responsibilities. In an appropriate case, that may include information about the Local Authorities' power and duty to bring proceedings if they have reasonable grounds to believe that the child is at risk of significant harm if they do not;
e. Pursuant to s 20(7) [s76(4)], the authority cannot accommodate a child if a parent with parental responsibility who is willing and able either to accommodate the child herself or to arrange for someone else to do so objects;
f. A parent with parental responsibility may remove the child from accommodation provided or arranged by a Local Authority at any time without the need to give notice, in writing or otherwise. The only exception to this is where preventing such a removal constitutes doing what is reasonable in all the circumstances to safeguard and promote the child's welfare for the purposes of ChA 1989, s 3(5);
g. If a parent unequivocally requires the return of the child, the Local Authority has neither the power nor the duty to continue to accommodate the child and must either return the child in accordance with that requirement or obtain the power to continue to look after the child, by way of applying for an emergency protection order, or if time allows, an interim care order.'
a. wherever possible, the agreement of a parent to the accommodation of their child under s 20 should be properly recorded in writing and evidenced by the parent's signature;
b. the written document should be clear and precise as to its terms, drafted in simple and straightforward language that the particular parent can readily understand;
c. the written document should spell out, following the language of s 20(8), that the parent can 'remove the child' from the Local Authority accommodation 'at any time';
d. the written document should not seek to impose any fetters on the exercise of the parent's right under s 20(8).
"The grandparents' solicitor queried when this allegation took place. The Social Worker stated that she is unsure as what age the complainant was when the alleged incident took place, but it was when she was a child. The solicitor asked whether this was investigated at the time and the social worker emphasised that she has not had any correspondence from Police and grandparents have not been spoken to yet regarding the matter. The social worker is unaware as to whether it's been investigated previously. The social worker cannot comment further on the investigation until the complainant has been ABE interviewed."
"Grandad, emphasised that Grandparents have brought the complainant's children up following this alleged incident and queried that if the allegation was true, why would they allow Grandparents to care for the children. The Team Manager acknowledged grandfather's comments and the difficulty of the situation, whilst explaining that the Local Authority have a responsibility to follow safeguarding procedures when new allegations are raised. Grandfather stressed that the complainant has made similar allegations previously when they were losing their children and she thought that if Grandparents were out of the picture, that the children would return to the complainant's care. Once the children were removed, the complainant retracted the allegations. The Local Authority Solicitor reassured grandfather, in saying that this will be taken into account."
"The grandparents' solicitor is concerned that threshold is not met in this case, as whether the Police substantiate the concerns or not, this is a historical allegation and several assessments have been done since the alleged incident."
"Grandfather feels that the complainant has made this allegation out of spite and has previously lied about many things. The Local Authority solicitor stressed that she would appreciate if all parties could co-operate until we can have a Review PLO, to look at the new information. The Local Authority requested for the current arrangements to remain in place until the Review PLO.
"The grandparents' solicitor summarised, in stating that it appears that we are in the same position as two weeks ago, which is waiting for the Police to conclude their investigation. Team Manager stated that this leaves the Local Authority in a difficult position in providing a decision, as the outcome will be made based on the Police outcome."
"The grandparents' Solicitor is concerned that the Police investigation is open ended. This is a historical allegation from 20/30 years ago and since this allegation, Grandparents have been assessed to care for their grandchildren and assessed to care for the child. The grandparents' solicitor is struggling to understand where this case is going, as minimal progress has been made. Also, the grandparents' solicitor is concerned that a risk assessment has not been undertaken".
"The social worker indicated that she tried to speak with the Police Officer but she was off last week and the social worker has taken leave, too. The social worker advised that it is difficult as the Local Authority are not sure as to what was verbalised 20 years ago. She is unsure as to whether these are allegations that have been made and not taken forward, or whether this is new information".
"The grandparents' solicitor feels that the Local Authority needs to be more proactive in making progress for the family. The grandparents' solicitor
felt strongly that a risk assessment should be undertaken, as the risk that could have been posed to the complainant 20/30 years ago, could be different to any risk posed to the child now."
"The Team manager acknowledged that this case is frustrating for the Local Authority also as they'd like to make a decision, but they must have the outcome of the Police investigation. The Team Manager reassured Grandparents that the Local Authority will do all they can in order to gain some information from Police. The grandparents' solicitor commented that they will escalate matters by means of a letter or arranging a meeting if necessary, should the Police not respond or are evasive."
"The grandparents are going to revoke S76 consent and are well aware that they will need to go to court really soon if they do this. Grandfather said he feels this is the only thing they can do as it feels like they are sat doing nothing and 15 weeks have gone and no one has even interviewed them and they are no further forward. They feel if a judge has a fresh pair of eyes on the case they will see how unfair this all is on the child . Grandfather reiterated its not about them it is about the child and they will do what they can for him."
"The grandparents will be revoking the section 76 agreement next week, and therefore will be expecting the case to be presented to the family court. There is another PLO meeting tomorrow"
"I am meeting grandmother tomorrow and it was suggested I let her know if she was not going to be assessed this would mean the child not being able to return to their care"
"I needed to make sure [ED] is aware that if she refuses the assessment then the child will not be able to return to her care even if the police NFA the case this assessment is needed due to the child's needs and the fact there is no legacy carer. The grandmother said this is so unfair as their health has not changed in this time and neither has their ability to care for the child ."
"Within the previously held PLO meeting a reassessment of Grandparents was proposed; Grandparents have declined this. Another PLO meeting is forthcoming (February), this will focus on plans moving forward… Unfortunately, should Grandparents agree to a re-assessment, there is the potential that they will not pass (previously they had legacy carers which are no longer in situ). Potential to escalate this case into the Court arena and of the need for the LA to share PR."
"Grandfather was very agitated in the meeting and he kept wanting to talk about the investigation and the accusations made by the complainant. The IRO kept asking him to focus on the child and how he is and not the investigation. Grandfather then asked why social services wont give the child back and said that I had told them he would not be returning. I intervened and said to Grandfather I did not make that comment , I said that if they were not willing to be assessed then it was highly unlikely that the child would be returning to their care. Grandfather would not accept this and was adamant I said that he wasn't going to return."
"Grandparents are currently being assessed, grandad not wishing to progress currently, J allocated assessor, it is early days, Assessor hasn't manage to get the grandad to engage but neither of the Grandparents have completed the relevant paperwork."
"The child hasn't got the time for people to be causing delays."
"Social Worker to liaise with Legal, there is a clear delay with the Connected Persons Assessment, application to the Court may be required."
LA actions during proceedings including disclosure
a. The search of the historical records was undertaken by the local authority solicitor. She disclosed the information located in archive relevant to the allegations as ordered by the court. Upon inspecting the archived documents, she identified potentially relevant information which fell outside of the disclosure anticipated in paragraph 5 above.
b. The additional information was quite properly addressed by the local authority and incorporated into the order dated 12 October 2023. Paragraph 3 permitted disclosure of a risk assessment prepared during the course of late 1990's proceedings. The risk assessment was relevant to the placement of non-subject, now adult children. The preambles to that order also acknowledge potential evidential issues which might affect threshold.
c. Following the making of this order and before the matter returned to court on in 6 December 2023 the additional information including the risk assessment undertaken in the late 1990's had been disclosed.
d. Whilst it is not accepted, the Local Authority acknowledge that some may take the view that the wrong balance was struck in what was disclosable pursuant to the September order. If that is the view of the court, the Local Authority reiterates that no attempt to withhold information was ever intended and the Local Authority continued to be mindful of its obligations in disclosing sensitive material.
i. Kent CC v A Mother [2011] EWHC 402, per Baker J (as he then was) – is authority for the proposition that there is a duty upon a Local Authority to conduct a lawyer led review of relevant material held on its files: Whilst Kent CC is specifically concerned with duties of a Local Authority which brings proceedings, self-evidently any Local Authority contemplating proceedings ought to have scrutinised the evidence base well before bringing proceedings, save in emergency both in order to establish whether proceedings are truly warranted and to ensure that as a public body its decisions and acts in the exercise of its powers and duties are done reasonably, lawfully and proportionately, particularly where they involve an ongoing Art 8 interference as was the case from [the date of the notification in] August 2022 to date.
ii. Within proceedings there is a specific rolling duty of full and frank disclosure. See Practice Direction Family Proceedings: Case Management [1995] 1 FLR 456:
"The parties and their advisers must also use their best endeavours:
(a) to confine the issues and the evidence called to what is reasonably considered to be essential for the proper presentation of their case;
(b) to reduce or eliminate issues for expert evidence;
(c) in advance of the hearing to agree which are the issues or the main issues."
iii. In addition, the Overriding Objective set out in FPR 1 also requires the parties to assist the court in ensuring that matters are dealt with justly, having regard to any welfare issues involved. This includes assisting the court to ensure that the case is dealt with expeditiously and fairly and that the parties are on an equal footing. Withholding records that would fall to be disclosed under standard disclosure principles does not ensure that the parties are on an equal footing.
iv. A Local Authority has a positive duty to disclose all relevant material in its possession or power (except that which is covered by public interest immunity), which might assist the parent in rebutting allegations made against him. Re C (Child Cases: Evidence and Disclosure) [1995] 1 FLR 204 (Cazalet). Social work records do not, as a category of material, attract PII (Durham County Council v Dunn [2012] EWCA Civ 1654, [2012] 1 WLR 2305, per Munby J). No such immunity been asserted in this case.
"I have also been gathering together the records from when the original allegation were made in the late 1990's. It appears that there may also be police disclosure from this period that would be relevant. I have located a number of case recordings but am concerned that our electronic file is not complete and so am in the process of locating the paper records in archives to ensure that the disclosure is as complete as possible and so this has taken longer than anticipated."
"The Local Authority solicitor performed a search on the Local Authority's system and went through all of the available historic records. The case notes which have been disclosed were those that were scanned onto the system and are all that exist in respect of the allegations. It was from looking at these recordings that it became apparent that there was likely to be information held elsewhere. The Local Authority solicitor therefore searched the Local Authority's archived records. The Local Authority solicitor had to identify where the files were stored and physically retrieve the same. This is where the late 1990's risk assessment was located. The Local Authority solicitor checked whether any other documents relating to the allegations had been archived but only the risk assessment was present. The Local Authority solicitor also looked through the bundle to see whether there was any additional information relating to the allegations and there was not. The author understands that it was made clear at the last hearing that there was not a huge amount of historical information available."
"60. The LA have actively sought to gain the consent of the previous respondents to the late 1990's proceedings, however, have only been able to contact one respondent. The Risk Assessment of the PGP's has already been disclosed.
61. The LA have identified 2 further documents within the late 1990's proceedings: the psychological report of the claimant and the Residential Assessment. Updating instructions will be taken at Court as to whether the LA could redact the documents to avoid the need for the previous respondent's consent. The consent of the complainant will be sought.
62. Any and all historic case recordings relating to the late 1990's have been disclosed to all parties. Updating instructions shall be taken about material from the discharge proceedings."
a. The Local Authority rehearses in its position statement the observation that the 'counsellor' in the late 1990's had indicated she believes the allegations (there is in fact no direct record of this, and it appears this is based upon a record of the Guardian's report to the social worker that the unnamed counsellor was 'convinced'. Quite apart from the fact that the hearsay report of the 'belief' of a counsellor is of very limited forensic use, we do not understand why other entries in the same records which point in the opposite direction were not disclosed until recently. These include:
i. the fact that the allocated social worker had multiple lengthy discussions with the complainant and reached the clear view that the allegations were internally inconsistent, changing over time and unreliable, and which evidence the complainant's ' tendency to raise allegations against others, and their highly volatile, changeable presentation/demeanour. She concluded her explanations were 'unconvincing'. Her records also make clear that the allegations followed (as in 2022) an argument with her father.
ii. We also cannot help but note that when properly scrutinised the professional apparently identified as a 'counsellor' is in fact a social worker undertaking a small number of direct work sessions with the mother primarily concerning domestic abuse, and that she appears to be the same social worker whose credibility was later substantially undermined in the 2008 case of [citation redacted](owing in part to an undisclosed serious conviction).
b. Records showing the complainants positive accounts of her parents care of her children were not disclosed. For example, records from 2018 (the subject child's proceedings) when the parenting assessment was carried out by the Local Authority's assesor and the complainant was entirely positive about the grandparents caring for the child. This is first apparent when the assessor files her repeat connected carers assessment in mid July 2023. The 2018 proceedings were not shared until 31 October 2023.
c. It was not until the discharge proceedings papers were disclosed in full (January 2024) that the parties and court could read the complainant's witness statement from the s31 discharge proceedings in respect of the grandchildren , where the complainant says in their statement dated 4 December 2013 that the arrangements between her and the grandparents and the children have continued to work well. They are all very relaxed in each other's company. "In particular the grandfather has long since forgiven me for accusing him of abuse as referred to on page 9 of the social worker's statement". The complainant states that the grandfather had been very supportive and encouraging which helped them end a domestic violence relationship. The complainant states further, "the children are thriving in the grandparents' care" and the complainant supported their application for a residence order for the three of the grandchildren . The complainant is referred to having said to the social worker that they had done a "brilliant job" bringing up the children. This has obvious relevance to the key issue in the case.
d. It was not until the Local Authority disclosed its historic records that the substantial disparity between the accounts given in the late 1990's and 2002 was apparent to the other parties (the most obvious example being how old the complainant was when the abuse is said to have happened, though there are others). The further recent police disclosure adds further layers of inconsistency.
Reunification
