London Borough of Haringey v Musa

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 19^th March 2014 and the 11^th 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 19^th March 2014 is under neutral citation number [2014] EWHC 962 (Fam), and the judgment of the 11^th 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.

However, the position that has now emerged since my judgment of last Friday, the 11^th 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.

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 19^th 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.

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:

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.

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.

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 11^th 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 14^th 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.

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.

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 11^th 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 1^st 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.

It necessarily follows from the fact that the local authority arranged that "goodbye" or "farewell" contact on the 14^th 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 8^th 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:

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:

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.

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

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 11^th 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".

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 15^th 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 29^th October 2013 in the minutes of which the following passage appears:

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 8^th 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.

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.

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.

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.

I have already given directions for a three day hearing starting on Tuesday, 1^st 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.