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Sharon Shoesmith’s application for judicial review fails

Judge criticises Secretary of State, Haringey and Ofsted

The application of Sharon Shoesmith, the former Director of Children's Services at the London Borough of Haringey, for judicial review of the decision to dismiss her from that post, has failed.

Mr Justice Foskett, before whom the application was made in the High Court, gave judgment on the 23rd April.

The background to the case was the death of Peter Connolly in 2007. In November 2008, following the verdicts in the criminal trial the previous day, Ed Balls, the Secretary of State for Children, Schools and Families asked Ofsted (together with the Healthcare Commission and Her Majesty's Chief Inspector of Constabulary) to produce an urgent report into the child safeguarding arrangements within Haringey. The inspection took place and the Secretary of State saw a final draft of the report during the evening of 30 November.

In consequence of the report the Secretary of State issued a direction on 1 December appointing two other named individuals to be DCS and Deputy DCS with immediate effect. At an internal hearing within Haringey on 8 December 2008 the decision was taken by a Panel of councillors that Ms Shoesmith should be dismissed summarily with no compensation. The decision was confirmed on appeal.

Ms Shoesmith challenged the lawfulness of the Ofsted report, the directions of the Secretary of State and the decisions made by Haringey. She alleged that each process was flawed by breaches of the principles of natural justice and that the procedures adopted in each process were unfair.

The judge emphasised that the case was not
• an inquiry into child protection arrangements across the country generally,
• an inquiry into child protection arrangements in Haringey at the time of Peter's death or at any other time,
• an inquiry into the reasons and responsibilities for Peter's death or
• a claim for compensation by the Claimant.

In the course of a lengthy judgment Foskett J rejected the suggestion that the Ofsted inspection was targeted at the Claimant personally. In the judgment he repeats on several occasions that suggestions of 'beefing up' or unfairly strengthening the conclusions are outside his remit on a judicial review application.

Having considered the evidence, he concluded that Ofsted complied generally with its obligation to carry out a bona fide and open-minded inspection except in respect of the important and sensitive finding that there was a failure on the part of Haringey "to ensure full compliance with some requirements of the Climbié Inquiry recommendations".

However, the Judge described as "inept" the handling of the obligation of candour by Ofsted in the proceedings. He was also concerned by the issue arising from Ofsted's instruction to delete e-mails and proposes to raise these matters with The Treasury Solicitor personally.

With regard to the effect upon the Secretary of State's decision of a petition run by The Sun newspaper, the judge commented:

"… I think it … far too simplistic to say that he took the decision that he did on 1 December because of being presented with a petition from a national newspaper a few days earlier."

Whilst overall the Judge accepted that the necessary standard according to law was achieved by Ofsted and by the Secretary of State, he concluded that certain things that potentially impacted on the Claimant were stated publicly in circumstances that gave her no proper opportunity to refute them and were thus "unfair". On the evidence available to him, the Judge concluded that these matters did not affect the validity of the Secretary of State's decision, but he expressed concern that they were stated at the Press Conference at which the Secretary of State's decision was announced.

The Secretary of State said at the Press Conference:

"In their summary judgement, the inspectors say that there [is] … insufficient management oversight of the Assistant Director of Children's Services by the Director of Children's Services and Chief Executive."

The Judge pointed out that no such opinion appeared in the 'Summary judgement' of the Ofsted report and drew the conclusion that the Secretary of State's observation was based on something said to him by the Chief Inspector and the Lead Inspector. The Judge observed that since the comment "went to [the] respective abilities and competence" of the Claimant and her Deputy and since neither "had a full and fair opportunity to refute it" it was unfair to have said it. Since the Ofsted report was not designed to deal with the situation of individuals, a comment such as this should have been avoided. 

A similar observation was made by the Judge about the suggestion made that the Claimant was "not fit to hold an office". That went to her personal professional ability and competence which was not something that had been the focus of the Ofsted inspection or report.

The Judge expressed the view that the Secretary of State would have been "better advised not to have been persuaded to express a view at the press conference about whether [the Claimant] should receive compensation from her employers [because it] could be seen as seeking to put pressure upon the authority which, as a public body, was obliged to consider properly, fairly and with due regard to its own legal powers what it should do in what was almost certainly a complex legal position". The Judge added this observation:

"His statutory role in relation to the Claimant and her Deputy ended when he made the directions he did on 1 December. If newspapers or other commentators wished to suggest what the outcome should have been, they were entitled to do so. But the Secretary of State should not have been seen to give support to those views …."

The appropriate venue, said the Judge, for determining the issue of the fairness or otherwise of the Claimant's summary dismissal by Haringey is the Employment Tribunal.

The Judge gave reasons for saying that process adopted by Haringey was flawed and liable to be declared unfair, but summarised his view in this way:

"The overall impression gained of Haringey's approach (perhaps understandable given all the external pressures) was that the sooner the Claimant was dismissed with no compensation, the better, and that everyone could "move on" once that had happened. However, simply because the Ofsted report was in the terms it was, and the Secretary of State acted as he did and he, others and various national newspapers called for the Claimant's summary dismissal was no proper justification for taking such an approach and it created the appearance of an unfair process." 

The concept of "accountability" was considered in the circumstances of this case. Could the Claimant, as Head of the CYPD, have been dismissed summarily because she was "accountable" for the failings of the Department even if not personally at fault for the existence of those failings? This was one reason given for her dismissal and reflects something said by the Secretary of State at the Press Conference on 1 December 2008.

The Judge observed that this matter will be of interest and concern to anyone thinking of taking on the role of DCS – or who is in the role or an equivalent role in local government – and ventured the view that, whilst it is a familiar concept in political terms, it has difficulties in the employment law context.

In relation to the dismissal of the applications against the decisions of the Secretary of State and the Ofsted report, he indicated that he had "reached those conclusions with a lurking sense of unease" partly because of the way in which the legal relationship between central government and local government operates in this kind of situation. He did not "think that any party will truly look back at how matters were handled in this case with complete satisfaction."

Foskett J extended the time for all parties for making any consequential applications to him. He encouraged all parties to take time for mature reflection on the implications of the judgment and not to make any hasty decisions about what to do next.

The judgment can be read in full here. A summary is available here.

Commenting on the judgment, Marion Davis, President of the Association of Directors of Children's Services, said:

"Directors of Children's Services across the country have witnessed the increasing attention paid by central government to the internal workings of local authority children's services departments, which has at times bordered on micro-management. As in all relationships between national and local government, where national intervention is required, the process, including checks and balances, should be clear. We accept the need for rigorous scrutiny, but we also demand that that scrutiny should be transparent, fair and proportionate, with an equal emphasis on promoting the best practice as on tackling the worst. Locally led and rigorously inspected services can and do serve children and young people well and must have the freedom to do so."

Christine Gilbert, Her Majesty's Chief Inspector, welcomed the judgment:

"I am pleased that the Judge's conclusion is clear: Ofsted's inspection process has been vindicated.

"Ofsted takes its role in inspecting the protection arrangements for vulnerable children very seriously. I am pleased, therefore, that the Judge has found in our favour in this judicial review. We carried out a robust inspection, came to a sound conclusion based on the evidence and acted fairly.

"The inspection team did a professional and rigorous job and we are pleased that they have been vindicated through the intense scrutiny of the court process."