R (Shoesmith) v Ofsted and Others

JurisdictionEngland & Wales
JudgeLord Justice Maurice Kay,Lord Justice Stanley Burnton,The Master of the Rolls
Judgment Date27 May 2011
Neutral Citation[2011] EWCA Civ 642
Docket NumberCase No: C1/2010/2635, 2635(A), 2635(B)
CourtCourt of Appeal (Civil Division)
Date27 May 2011

[2011] EWCA Civ 642

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT (MR JUSTICE FOSKETT)

REF NO: C022412009

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Master of the Rolls

Lord Justice Maurice Kay,

Vice President of the Court of Appeal, Civil Division

and

Lord Justice Stanley Burnton

Case No: C1/2010/2635, 2635(A), 2635(B)

Between:
The Queen (on the application of) Sharon Shoesmith
Appellant
and
Ofsted & Ors
Respondent

Mr James Maurici and Mr David Blundell (instructed by Beachcroft LLP) for the Appellant

Mr James Eadie QC and Mr Clive Sheldon (instructed by The Treasury Solicitor) for the Secretary of State for Education

Mr Tim Ward and Mr Ben Lask (instructed by The Treasury Solicitor) for OFSTED

Ms Ingrid Simler QC and Mr Akash Nawbatt (instructed by Legal Services) for Haringey London Borough Council)

Hearing dates: 28, 29, 30 March 2011

Lord Justice Maurice Kay
1

There is nothing more disturbing than the death of a child resulting from the criminal acts and omissions of those with responsibility for his care. There is a growing list of the names of such children which are ingrained in the national consciousness. The list now includes Peter Connolly – "Baby P" – who died on 3 August 2007 when he was only 17 months old. For some months he had been the subject of a child protection plan devised by the London Borough of Haringey ("Haringey") and was accordingly on the child protection register because of concerns about neglect and abuse. Following his death, Tracey Connolly (his mother), Steven Barker (her boyfriend) and Jason Owen (Barker's brother) were charged with a number of offences. They were tried in the Central Criminal Court. The trial ended on 11 November 2008. Although they were acquitted of murder and manslaughter, they were convicted of causing or allowing Peter's death contrary to section 5 of the Domestic Violence, Crime and Victims Act 2004. Indeed, Tracey Connolly had pleaded guilty to such an offence at the outset of the trial.

2

A public and media outcry followed the convictions. Much of it was directed at Haringey. Sadly, it was in the same Borough that Victoria Climbié had met her tragic death but a few years earlier. Her death had led to the Laming Report and eventually to the Children Act 2004 which changed the way in which children's services are to be provided by local authorities. One of the changes was the creation of the statutory post of Director of Children's Services (DCS) for each children's services authority. Essentially, a DCS is responsible for the education, social work and some other services referable to children. Ms Sharon Shoesmith became the first DCS in Haringey. Immediately before that she had been Director of Education in Haringey since April 2003. She was held in high regard in that post. As Foskett J ("the Judge") said in the judgment that has given rise to this appeal ("the Judgment") (at paragraph 14):

"She was plainly very highly thought of within the Borough and continued to be highly thought of by her colleagues within Haringey until the events with which this case is concerned."

3

Prior to her appointment as DCS, she had no background in social work. She had been a successful teacher and one of Her Majesty's Inspectors of Schools before becoming Director of Education. It is a feature of the scheme under the 2004 Act that a DCS is likely to be inexperienced in either education or social work. Because Ms Shoesmith's experience was in education, day-to-day management responsibility for child safeguarding was delegated to a Deputy DCS, Ms Cecilia Hitchen, whose expertise and experience was in social work.

4

This case is concerned with events which began to unfold on 11 November 2008 immediately after the criminal trial. In his thorough and formidable Judgment, which contained 548 paragraphs, the Judge described the events with meticulous care: [2010] EWHC 852 (Admin). He also produced a Summary of the Judgment. In these circumstances, it is not necessary for me to rehearse the factual background in detail. Accordingly, at this stage I shall simply describe the background with brevity. I shall have to delve further into the facts in the course of this judgment.

A brief description of the facts

5

On 12 November 2008, the day after the conclusion of the criminal trial, the Secretary of State, then the Rt Hon Mr Ed Balls MP, requested the Office for Standards in Education, Children's Services and Skills (OFSTED), together with the Healthcare Commission and Her Majesty's Chief Inspector of Constabulary, to produce an urgent report into child safeguarding arrangements within Haringey. His request was made pursuant to section 20 of the 2004 Act. OFSTED produced a final draft of its report on the evening of 30 November. In accordance with OFSTED practice, it did not name individuals but it was very critical and it identified a number of serious concerns. On the morning of 1 December, leading members of the OFSTED team had a meeting with the Secretary of State. Within hours, the Secretary of State made a direction pursuant to section 497A (4B) of the Education Act 1996 appointing Mr John Coughlan (seconded from another local authority) as DCS in Haringey until 31 December 2008. The Secretary of State held a press conference on the afternoon of 1 December at which he said that, as Ms Shoesmith was employed by Haringey, it would be considering the employment relationship (as opposed to the statutory position of DCS from which he had removed her) "this afternoon and immediately". He made it clear that his view was that Ms Shoesmith "should not be rewarded with compensation or pay offs" but that "that's a matter for Haringey". There was also reference to a petition which had been organised by The Sun newspaper in the aftermath of the criminal trial and which had called for the sacking of Ms Shoesmith and others.

6

Haringey immediately suspended Ms Shoesmith on contractual pay. She was called to a disciplinary hearing on 8 December which resulted in a decision to dismiss her summarily and without payment in lieu of notice or compensation of any kind. The reasons given for her dismissal were the Secretary of State's direction and a fundamental breach of trust and confidence. Ms Shoesmith pursued an internal appeal but it was rejected on 12 January 2009.

7

Meanwhile on 19 December 2008, the Secretary of State had made a further direction pursuant to section 497A (4B) appointing Mr Peter Lewis to be DCS for three years from 1 January 2009.

These proceedings

8

On 6 March 2009, Ms Shoesmith issued an application for permission to apply for judicial review against OFSTED, the Secretary of State and Haringey. In a nutshell, her case is that the OFSTED report was prepared without compliance with relevant procedural arrangements and/or in breach of common law requirements of fairness; that the Secretary of State's directions under section 497A (4B) were unlawful because of a failure to observe the requirements of procedural fairness and because he impermissibly had regard to The Sun's petition; and that her dismissal by Haringey was unlawful because it was founded on the unlawful directions of the Secretary of State and/or it, too, was procedurally unfair. At the same time, Ms Shoesmith commenced proceedings in the Employment Tribunal but these are currently stayed pending resolution of the judicial review proceedings.

The Judgment and Order of Foskett J

9

Following six days of oral argument and later written submissions, the Judge dismissed all of Ms Shoesmith's applications. He did so with "a lurking sense of unease" (Judgment, paragraph 540). As regards OFSTED, he concluded that the requirements of procedural fairness were less than those which would apply to a disciplinary process and that its duty of fairness:

"was simply derived from a duty to carry out a bona fide and open-minded inspection into what they found and to report accordingly." (Judgment, paragraph 483).

OFSTED had discharged this obligation in very difficult circumstances.

10

The case against the Secretary of State failed because he was not engaged in "a true disciplinary process"; the issue had a local and national dimension that affected vulnerable children; he was entitled to view the situation as urgent; and, accordingly:

"the traditional safeguards concerning the rights of an individual to a fair hearing and/or a fair opportunity to put his or her case, whilst not removed totally, of necessity assumed a considerably lower profile than it might otherwise have done." (Judgment, paragraph 387).

11

The Judge considered that the requirements, having been reduced by the context, were satisfied. He rejected the ground of challenge based on the Secretary of State's alleged reliance on the petition in The Sun as "far too simplistic" (Judgment, paragraph 405). In addition he concluded that, even if Ms Shoesmith had been accorded an opportunity to make representations to the Secretary of State, the outcome would have been no different.

12

In the case of Haringey, the Judge rejected a submission that its decisions were not amenable to judicial review but concluded that, because of the alternative remedy in the Employment Tribunal, he should not rule on the application. However, he made it clear that, if he had thought it appropriate to rule, he would have allowed Ms Shoesmith's application.

This appeal

13

The Judge granted Ms Shoesmith permission to appeal in relation to the Secretary of State and Haringey but he refused permission in relation to OFSTED. Permission in relation to OFSTED was granted by Stanley Burnton LJ on consideration of the papers. I now turn to the issues arising on appeal.

1

OFSTED

14

On the morning of 11 November 2008, the trial of the three defendants responsible for the death of Peter concluded at the Central...

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