A and B (Children) [2016] EWFC B115 (1 April 2016)

IN THE FAMILY COURT SITTING AT BRISTOL CASE NO: BS15C00190

IN THE MATTER OF A and B

IN THE MATTER OF THE CHILDREN ACT 1989

JUDGMENT

See appeal: [2016] EWFC 68

The issues in this case

The final hearing in this case commenced on 13 July 2015. It was initially contested (the Local Authority, Bristol City Council (“BCC”), being at odds with the view of the children’s guardian, Sarah Stott, and the Mother).

However, after lunch on the second day, by which time I had heard evidence from Dr Grace Tantam, OP from Bristol Drugs Project, WX and YZ from the children’s school, Linda Fraser, consultant social worker, Dr Emma Heckford and Aoife McNally, educational psychologist, BCC conceded that a supervision order would be the more appropriate option, as recommended by Sarah Stott.

However, during the course of Ms Fraser’s evidence, an issue arose which requires me to hand down a judgment in relation to the allegations made by the Mother against Linda Fraser and BCC. The view I took was that it should be in writing. Of course, as everyone is aware, the burden rests on the Mother to prove the allegations she raises, and I have to deal with those allegations on the balance of probabilities. I also note that the children’s guardian, Sarah Stott, supports the making of the findings sought by the Mother.

At F63 and F64 of the bundle there appears a case note created by the original social worker, CD, relating to a statutory visit which occurred at Gardiner Haskins on 16 December 2014. The odd thing about it is that there are two different versions of what appear to be one case note.

The case note at F63 was, apparently, “created” by CD on 17 December at 08:20. It was “finalised” by her on the same date. That note states:

“Met the Mother, A and B at Gardener Haskins went to café for hot chocolate

A run off and generally struggled to engage. A was defiant and would not listen for all the session. He tried to climb into the baby seat, wandered off, went to the toilet running despite the Mother asking him to stop. He touched the goods in the shop and when asked not to touch the TV he did and would not listen to why he could not change the channels without asking. He sat on the floor continued too slurp his drink. He put chocolate sprinkles on everything and tormented B by putting things in her drink. He refused to listen to me or the Mother. When spoken to he would either whine and shouted.

The Mother followed A to the toilet and I spoke to B. She told me her Nan sent her presents for Christmas last year and that the school hamsters had been sent away for Christmas. She had a cracker and said she had school dinner today. She appeared relaxed and ate her cake and drink. She was clearly upset with A’s behaviour as he was irritating and spooling her fun. B said she had a gold card today at school because she used her knife and fork when eating her lunch. She said if she was good for a week she was going to go skating.

The Mother took a call it was from young she said he was ill. She appeared agitated but did try to make conversation. I noted she perspired wiping her forehead constantly. I asked if she wanted a lift home she refused she said she had not collected her medication it was 4pm. The Mother said that she is struggling with A in the afternoons and hoped the new medication would help. She will attend the Core Group tomorrow.”

At F64 the note of that very same meeting is, in my view, markedly different. It states:

“Met the Mother, A and B at Gardener Haskins went to the café for hot

chocolate – as agreed with the children

A run off and generally struggled to engage. A was defiant and would not

listen for all the visit. He tried to climb into the baby seat, wandered

off, went to the toilet running despite the Mother asking him to stop. He

touched the goods in the shop and when asked not to touch the TV he

continued and would not listen to why he could not change the channels

without asking. He sat on the floor and continued to slurp his drink. He put

chocolate sprinkles on everything and tormented B by putting things in her

drink. B kept yelling no – the Mother did not intervene.

A refused to listen to me or the Mother. When spoken to he would either

whine and shouted.

The Mother followed A to the toilet as he refused to come back, and I spoke to

B. She told me her Nan sent her presents for Christmas last year and

that the school hamsters had been sent away for Christmas. She had a cracker

and said she had school dinner today. She appeared relaxed and ate her cake

and drink. She was clearly upset with A’s behaviour as he was irritating and

spoiling her fun. She kept asking him to stop and A shouted no – at times

the Mother seemed oblivious to what was going on.

B said she had a gold card today at school because she had used her knife

and fork when eating her lunch – I praised her for doing well. (I was surprised

she did not use her knife and fork already) She said if she was good for a

week she was going to go skating.

The Mother took a phone call it was from UV she said he was ill.

She appeared agitated but did try to make conversation with me. I noted she

perspired wiping her forehead constantly. I asked her if she wanted a lift home

she refused she said she had not collected her medication it was 4pm. (This

seemed to me to be later than usual). She will attend the Core Group

tomorrow.

For ease of reference, I have underlined the differences in the two notes. I have also noted that the following phrase is missing from the second version: “The Mother said that she is struggling with A in the afternoons and hoped the new medication would help.”

The second version at F64 indicates that it was updated by Linda Fraser on 2 July 2015 at 14:11 and that it was finalised by her on that date.

The chronology

These proceedings were issued on 10 February 2015. It was initially before the lay justices who gave case management directions on 27 February 2015 but it was subsequently transferred to me, and I was first involved on 8 June 2015. It was listed before me for a final hearing, for half a day on 8 July to hear Dr Tantam’s evidence, and then 13-15 July.

There had also been a further case management hearing on this case before me at 9.30 on 2 July. A number of outstanding issues had been raised at that hearing, in particular, mother was seeking the disclosure of case notes, which BCC opposed. I made the following order, namely:

The local authority shall by 4pm on 6 July file and serve the following documentation:

a) Annexes to the Statement of SEN in respect of A;

b) All IEPs in respect of both children;

c) Behaviour support plan;

d) Any research cited in the local authority final evidence and relied upon;

e) Records from the local authority and from any health professional involved in meetings on 24.02.15, 09.04.15 and 21.04.15;

f) Case logs of observations by the local authority supporting its assessment of the relationship between the siblings and their mother, the morning routine within the household and any evidence of “extreme distress” exhibited by A;

g) A copy of the social worker’s final statement signed by the author of the same.

The documents were served late.

When it was put to Ms Fraser during her evidence on days one and two of the final hearing that it looked as though someone had edited the note, she agreed. She was adamant that she did not edit the note. What she did say was that she had gone through the notes with the former social worker to check it was correct in a “quality assurance” role. I, myself, asked her why she had done that when CD had finalised the note back in December. Although I have not noted an answer in my notebook, I note that the transcript indicates that her answer was as follows: “In terms of sending them off I wanted to make sure that everything was there and correct to be sent off.” She was asked then by Ms Reed, counsel for the mother, whether CD had edited the case note. Her answer was that, whether she did or did not, she did not know. She said that CD would be able to say if the note had been edited.

CD had prepared a short statement on 14 July, stating that she may have added more to her case note later on, that she could not account for why there are two versions of her visit but that the recording at F64 was accurate. In her oral evidence on 15 July she confirmed that she finished with this case in December 2014 and had not been involved with it for ages. She set out what she had been doing on 2 July and that she could not recall whether she had met with Linda Fraser on 2 July (they are both in the same building, although on different floors). However, she stated that she was not working in that team in July and was not working on this case then. She could have edited the note before, but was not involved on 2 July and did not edit the note then: “I would remember doing it if I’d edited the note on 2 July.” When put to her that the first version of her note indicated that the Mother had intervened, she stated that she would not have made the note inconsistent. There would have been no cause to go back into the records once she had finished with the case.

EF, the then current social worker, produced her diary for 2 July on 15 July. She had carried out an unannounced visit in the Hillfields area of Bristol at 2pm but the family was not in so she returned to the office, arriving at about 2.20 - 2.30pm (after the note was, apparently, edited). She said she had not accessed any of the case notes prepared by CD and her view was that, if the notes had been finalised, it was not possible to have access to them. Each social worker has her/his own computer; there is no “hot-desking.” There are individual protocol log-ins and passwords, and no passwords are shared.

It was deemed necessary to obtain some expert input from Bristol City Council’s service provider, Liquid Logic. They had a copy of F63 and F64 and also a case note recording a telephone call on 5 May 2015 which, although it was possible for it to be printed on 10 July, had not been updated or finalised. This is by way of comparison, I believe, to F63 and F64. Several questions were also put to them which, it was hoped, would clarify what had gone on.

Subsequently, it was necessary to instruct an independent expert, QR, as Liquid Logic were unable to answer all of the questions. QR in his final report dated 1 October 2015 summarised as follows:

“although I am concerned by the lack of consistency in the evidence I have reviewed, it is more likely from what I have seen for the update on 2^nd July shown by the differences between F63 and F64 to have been made by someone logged on as Linda Fraser than anyone else, but I put the probability of this as being no higher than 60 per cent.”

No party has sought to challenge the evidence of QR.

I entirely accept that the expert evidence points out flaws within the BCC system, but that does not affect my findings in the context of Ms Fraser altering the case notes immediately following my order for disclosure on 2 July 2015. This was something she generated herself; it had nothing to do with BCC’s systems.

On the evening of 14 July, Linda Fraser collapsed at home and I was told at the next hearing on 23 July that there were also underlying health issues. She confirmed on 11 January 2016 that she had not seen anybody about exhaustion until after she had given her evidence at the final hearing. Through no fault of hers, her illness has caused considerable delay in these proceedings.

On 23 July I was told that a new social worker had been allocated, GH, and I ordered, among other things, a transcript of the evidence of Linda Fraser, CD and EF from the final hearing.

On 13 August 2015 Mr Richard Ellis appeared on behalf of Linda Fraser, although she was not well enough to attend court herself. I gave her permission to intervene in these proceedings. Although she was not well at the time, Mr Ellis felt he could take instructions from her.

The next hearing was on 23 September. I ordered a transcript of the hearing on 2 July and provided for Linda Fraser to provide a response to the findings sought by the Mother together with any evidence on which she seeks to rely, including medical evidence. BCC was also to provide a response to the findings sought against it.

A further hearing was held on 6 November by which time Linda Fraser had filed a further statement. There was also no medical evidence that she was unfit to attend court. By this time Mr Ellis had instructed Kathryn Skellorn QC to represent Linda Fraser. The court directed that Linda Fraser should give further evidence. It was also directed that BCC should file and serve a witness statement from IJ (family support worker) and CD, to answer the following two questions:

a) Are you able to identify what may have been added/removed/amended from your original case note? If so, with what degree of certainty?

b) Does the note in its updated form remain an accurate reflection of your professional activity on the day in question?

The adjourned final hearing was listed to take place on 11 and 22 January

2016, with Linda Fraser to give evidence on the first day. IJ also gave

evidence that day. CD gave evidence on the 22^nd. The purpose for Linda

Fraser to give further evidence was set out in the order of 6 November,

namely:

a) What was the intervener’s motivation in editing case recordings? Were the edits made with the intention of bolstering the Local Authority’s case / damaging the Mother’s?

b) The intervener’s truthfulness and the assertion that she did not intentionally lie in her earlier evidence;

c) The extent to which the intervener’s conduct may have impacted on the case, and, if so, in what way, in particular to the extent to which the editing of the records may have undermined the evidence base.

Linda Fraser acknowledged in her evidence on 11 January that she was aware that this is a conduct issue, that she did not focus on what she was doing at the time and that she did not give it priority. She did not register that she was changing the evidence. She accepted “how it looks.”

Before I go on to deal with the findings sought by the Mother, I should first of all refer to BCC’s policy, procedure and guidance document in relation to case recording. It appears at F125 onwards in the bundle.

The purpose of the case recording is to:

· Document the views and feelings of the child;

· Ensure continuity, should the social worker be absent or has left the service;

· Ensure accountability of individual workers to the agency;

· Ensure accountability of the agency achieving expected standards;

· Facilitate reflection, analysis and planning;

· Provide biography for the child-in-care who may not have any other source of detailed information of their childhood in later life;

· Provide management information for the design and delivery of services;

· Provide the basis for supervision of individual workers;

· Provide evidence for care planning;

· Produce evidence of formal enquiries for legal proceedings;

· Support partnership working with parents and children.

Fifteen factors have been identified as principles for good case recording…..

· Accessible

· Accurate

· Audited

· Concise

· Confidential

· Dated

· Distinguishing fact from opinion

· Drawn up in partnership with the parents and the child, as appropriate

· Efficient

· Evidence-based, always stating the source, date and time

· Legible and grammatical

· Logical

· Signed

· Stored securely

· Timely

In relation to paragraph 11 concerning case directions, it states: “On making a significant decision on the child’s plan, the manager taking the decision must record the detail as a case-direction case-note on the child’s record immediately, using the Case-directions Checklist provided in Guidance below. Case directions are the responsibility of the team manager, which may be delegated to the senior practitioner or student practice assessor, as appropriate. Ordinarily, the team manager will make a case-direction case-note following consultation of the service manager. Only exceptionally will the service manager make the case-note, in particular, when it has been necessary to countermand previous decisions or there is a difference of opinion.”

At paragraph 12, also in relation to case notes, recording standards at three levels have been devised to assist the social worker with time management when making a running record of events. The levels are:

· Saturation recording – every event in detail, within seventy-two hours

· Routine recording – relevant events only, within ten working days

· Outline recording – key events only, within ten working days.

At paragraph 21 it states that, wherever possible, the social worker should retain rough notes made on paper in addition to case recording on PARIS [the previous system], until the completion of anticipated legal proceedings. The rough notes made immediately following an interview may be crucial in the presentation of evidence in court.

At paragraph 23 it very clearly states that you must ensure that it is evident who composed a record. If it is not clear, you must write at the end the name, designation and the date of the entry. Write name and designation in full as someone reading the record, forty years hence, shouldn’t have to guess abbreviations.

Unless I have overlooked something, I can see nothing in the policy and guidance enabling somebody to alter a record several months later and/or without consulting the observing social worker as to whether the alterations are accurate. This is, I believe, conceded by BCC. The critical words “timely” and “immediately” are mentioned. Linda Fraser also conceded in her oral evidence on 11 January that she was not confident in saying when she had last looked at the policy document. She did not recall the three levels set out in paragraph 12.

Yet, in Linda Fraser’s second statement at paragraph 24 she states that she “did not think I was committing a serious breach of policy when I amended those logs that I have been able to remember and have addressed below. It was very much common practice not to finalise logs every time, despite the policy saying you should. It was common practice to add things to logs later. It was not unknown to add into the log of a colleague …… I accept, therefore, that I may have breached policy both by un-finalising and in editing material after the time of the main recording but this was something that did take place; emphasise that this was not for any dishonest purpose but simply to keep pace with the demands of the job and the high levels of recording required for the multiple functions of social work. I am not seeking to complain or minimise this, simply to explain every day practice.”

I have also been provided with extracts from HCPC Standards of Proficiency – Social Workers in England as follows:

a) 2.6 be able to exercise authority as a social worker within the appropriate legal and ethical frameworks;

b) 2.7 understand the need to respect and uphold the rights, dignity, values and autonomy of every service user and carer;

c) 2.8 recognise the relationships with service users and carers should be based on respect and honesty;

d) 4.3 recognise that they are personally responsible for, and must be able to justify, their decisions and recommendations;

e) 10.1 be able to keep accurate, comprehensive records in accordance with applicable legislation, protocols and guidelines;

f) 10.2 recognise the need to manage records and all other information in accordance with applicable legislation, protocols and guidelines;

g) 12.3 be able to engage in evidence-informed practice, evaluate practice systematically and participate in audit procedure.

Findings sought by the Mother against Linda Fraser and Bristol City Council

There are a number of findings sought by the Mother against Linda Fraser (LF) and Bristol City Council as follows:

1) 2 July 2015, following the order for disclosure that morning:

a) LF improperly and contrary to the policies of Bristol City Council obtained authorisation from KL to un-finalise the finalised log of another professional colleague, and edited that log, namely the log of CD of her visit on 16 Dec 2014 [F63-4 / G75 / M1 / M5] before production to the parties*;

In response to this allegation, Linda Fraser states that “Whilst I accept that this record shows I have updated and finalised this log on 2 July 2015, I do not recall making any amendments to it. I do however take full responsibility for the alterations, as I accept it was unlocked for me, that my name is recorded as having updated the record and there is no other explanation. I have thought about this long and hard and, in respect of this log, I simply do not remember thinking about or making any amendments.”

In my view, this makes no sense whatsoever. As I recall, Linda Fraser was present in court on 2 July when I ordered, among other things, disclosure of the case records. I did not in my order specify disclosure of “existing” case records but, surely, that was implicit. Case records were to be disclosed as they existed at the time. That very afternoon, no doubt in the context of the disclosure order, Linda Fraser went into the record finalised by CD some months previously, and altered it. How could she not remember that, in the context of my order made on the very same day, she substantially altered this case note? She said on 11 January that she did not know she had made the edits when she gave her evidence at the final hearing, but that she did know now. She did not recognise that record and could not recall it, which was why she had said she did not do it. When asked why she could not remember making substantial changes to this document, she answered that she “would love to give an explanation.”

This makes no sense and I do not believe what she says.

She acknowledged in her oral evidence on 11 January that she had, indeed, gone into that document and that some things were added. She understood that records had been tampered with, and that was not appropriate. She totally accepted that she made those amendments. But later in her evidence on 11 January she said she does not remember that case note!

I am also satisfied that she did not consult on 2 July with CD in this respect so how could she be satisfied that her altered note was accurate? (CD also confirms that in her December 2015 statement, and in her oral evidence on 22 January she said she had “no recollection of meeting with Linda Fraser on 2 July.”) Linda Fraser was not the social worker who met with the family on 16 December 2014.

Ms Fraser indicates at paragraph 32 of her statement that she had had a discussion with CD following the Gardiner Haskins visit (Ms Skellorn says in December 2014). CD in her December 2015 statement also confirmed that she thought she had had a conversation with Linda Fraser after that December 2014 visit. Because of how CD described it, Linda Fraser had recalled some of the information that she had been told by CD, and added it. That does not make sense either.

How could she recall a conversation seven months later when she could not even remember what she had done on the same afternoon she had been in court, when disclosure of case notes was ordered? She also said in her oral evidence on 11 January that she could not remember having a conversation with CD about the Gardiner Haskins visit.

I have also indicated at paragraph 6 that I consider her altered version to be markedly different to the original. Further, how did she know that the things she had added were true? And why did she omit “The Mother said that she was struggling with A in the afternoons and hoped the new medication would help”?

I am afraid that my very clear impression is that she altered the case note to bolster the local authority’s case.

She also, as she has accepted at paragraph 24 of her second statement, may have breached BCC’s policy. There is no policy set out in respect of retrospective alteration of case records and, if there is no such policy (given the words “timely” and “immediately”), I conclude that delayed alterations should not have been made.

Accordingly, I make the finding sought by the Mother.

b) LF improperly and contrary to the policies of Bristol City Council obtained authorisation from KL to un-finalise the finalised log of another professional colleague, and edited that log, namely the log of CD of her visit on 18 September 2014 [F58 / G68] before production to the parties*;

Linda Fraser accepts amending the time on this log. She says that she spoke to CD to double-check the time (but cannot remember when) and she said that she would alter the time for her. She alleges she did so on a Quality Assurance (“QA”) basis. But, why, when she was so busy, would she make such an inconsequential amendment to this note?

I make the finding sought, although I concede this is a much less serious matter than some of the other issues I have to determine.

c) LF improperly and contrary to the policies of Bristol City Council obtained authorisation from KL to un-finalise the finalised log of another professional colleague, and edited that log, namely the log of IJ of her contact with the family on 28 May 2015 [F76 / G92-93] before production to the parties*;

*whether by printing and sending herself or by instructing or requesting some other person such as KL to do so on her behalf.

Linda Fraser accepts that she amended this log in terms of grammar. This was on a QA basis only. At the time she genuinely did not see anything wrong in making the amendments.

IJ states in her statement dated 8 December 2015 that there are a number of additions to the case note at F76-77 and she has highlighted these on a copy attached to her statement. What she could not say was whether the additions to the note were made by her or whether they were made by somebody else. However, as far as she was able to recall, the amended note reflects the events of the visits accurately and the additions that can be seen are certainly what she remembers from the visit.

Indeed, I have noted that nearly all the amendments made are positive.

In her oral evidence she said that “nothing was not accurate.”

I am not satisfied that this finding is made out.

d) On at least 1 further occasion on 2 July LF was authorized to un-finalise (and therefore edit) case logs [M1 / M3 / M34]

Again, she does not dispute making requests to un-finalise case logs on 2 July 2015, although she cannot recall which ones specifically. She states that this was only to “remedy perceived deficiencies and provide accuracy and full detail.”

I make this finding.

1A) 6 July 2015 LF contacted the joint expert Dr Tantam without

prior notification to the other parties, and that she stated to Dr

Tantam that the other parties had been notified that she would be

doing so, knowing that this was false and misleading, or

alternatively being reckless as to whether or not it was accurate.

Linda Fraser’s recollection is that she e-mailed MN in the

legal department requesting her to let the other parties know that she

would like to speak to Dr Tantam. She is aware that the note of her

conversation with Dr Tantam says that she had explained to the other

parties of her intention to speak to Dr Tantam. She accepts that the

recording was not as clear as it could have been, as she says that it was

not for her personally to inform the parties. She alleges that she did not

intentionally tell her that the other parties were aware, with a view to

being false or misleading. She recalls saying to Dr Tantam that the

other parties had been informed on the basis she assumed Legal had

notified them. She asked Dr Tantam whether she was happy to have a

conversation with her about the issue of bridging placements and she

agreed, given that it was a discrete issue.

Given that she had not ascertained that the legal department had

notified the other parties, I find that Linda Fraser was reckless as to

whether or not it was accurate.

2) 8 July 2015, immediately following an exchange of e-mails between lawyers concerning failure to comply with the orders made on 2 July 2015, just prior to the start of the FH at 2pm:

a) LF provided the documents at G1-8 by way of disclosure of evidence underpinning her assessment;

She accepts that these documents were provided as requested.

I make this finding.

b) Prior to providing these documents she improperly and contrary to the policies of Bristol City Council created a case record relating to a telephone call said to have taken place on 29 October 2014 [G5 / G58];

Linda Fraser responds that, when she was asked to provide a chronology of what happened (paragraph 1 of my order dated 2 July 2015), she went through her notebook in which she keeps her handwritten notes, to ensure that all her notes were properly saved on the system. She noticed that this phone call was not in there, and so she added the note. She accepts it was done following the request for case notes. She was simply double-checking that everything was there prior to disclosure so that the full notes were being disclosed, when she realised this had been missed off. Once the notes had been saved to the system, she would tear the page out and shred it. The page is, therefore, no longer available. She further states that BCC works with paperless files and, therefore, handwritten notes are only kept in relation to allegations.

But this is contrary to BCC’s policy at paragraph 21 which states: “Wherever possible, the social worker should retain rough notes made on paper, in addition to case recording on PARIS, until the completion of anticipated legal proceedings.”

Why did not Linda Fraser follow this policy? It would have helped her because she could have produced that note, and substantiated her typed case record. So, how do we now know that that note really existed?

What is also not clear to me is that the chronology was due by 4pm on 3 July 2015 and the remaining disclosure was required by 4pm on 6 July. Yet, this note was constructed at 11:29 on 8 July.

I make the finding sought.

c) LF provided the document at G5 in a format that concealed the date on which the document was created and did so with the intention of concealing from the court and the parties the fact that the record had only been created following the order for disclosure on 2 July and the exchange of e-mails chasing that disclosure.

Linda Fraser asserts that there are two different ways in which you can print case recordings. She understands that the version at G5 is what prints out if you hit “Ctrl” and “P” together. That is the quickest way of printing a recording. The other way involves a couple of clicks and is slightly longer. She denies printing the log in this way to conceal the fact that the record had only been created after 2 July. She says she used “Ctrl” and “P” simply for speed. She had no idea that different versions were generated depending on the way in which you selected to print.

But she had been a social worker for 18 years. Surely, she would have noticed in all that time that there was a difference in how a record was printed.

Further, the only other record printed off in that way is G16, relating to 5 May 2015 which relates to another allegation against Linda Fraser (see below).

I make the finding sought for the reasons given below in particular in relation to allegation 3(b).

3) 10 July 2015:

a) Following receipt of M’s final evidence and the report of BDP [8/7/15], LF improperly and contrary to the policies of Bristol City Council un-finalised and edited her own case log of 5 May 2015 [F126 – renumbered as G16] on either 5 July [M5] or 10 July [M3 / G64] or both, before printing and production to the parties on 10 July [M3];

Linda Fraser said she does not recall this.

This was a telephone conversation with OP from BDP regarding the Mother asking for her medication to be held at home, she no longer wishing to have a daily pick-up. It took place on 5 May 2015; although the time is not recorded, it was initially created the same day at 11:16. The update was apparently created by Linda Fraser on 10 July at 10:17.

The updated note states as follows:

“The Mother has asked for her meds to be held at home, she no longer wishes to have daily pick up.

ST [doctor] is asking CYPS for their opinion.

I advised that this was BDP decision we were not the prescribing agent and it was up to them to undertake a risk assessment.

I asked why the Mother was requesting a change.

The Mother is stating she prefers to have the meths first thing in the morning as it helps her to manage the children, she finds it hard when she has to wait – I advised that the Mother had not informed anyone she was struggling or finding it hard.

I also advised that on occasion the Mother collects her script midday and the C and FSW had taken her – therefore I questioned the consistency in taking her meds – I suggested that maybe they should contact the pharmacist and see if there was a pattern to pick-up times.

OP agreed this was needed – the meds last 24 hours in the body and therefore if she takes at midday she should be ok in the morning, if she takes in the morning she will struggle at midday – this needs to be looked into in order for BDP to make an informed decision.

Advised that CYPS are not responsible for the script and storage.

BDP needs to assess the Mother and the home environment – there is a locked box at the house, we were still involved and in care proceedings due to parenting concerns and this needed to be BDP’s responsibility.

OP will discuss further with the Mother, the pharmacy and GP and feedback to CYPS.”

OP’s account is very different in her e-mail to EF dated 8 May 2015. She states:

“The Mother requested a 3 days a week pick up and I discussed it with the GP, who said that since we do not see the home situation, he is happy for this to be changed but only if her social worker agrees. I then called and since you were not at work, I spoke to your senior (can’t remember her name), who advised me that she would be reluctant for that change in dispensing as things still seem a bit chaotic with the Mother.

I therefore explained to the Mother that her social worker was better placed to make that decision as we do not know what goes on at home. I informed the Mother that I will discuss this with you next week as I only work Mondays to Wednesdays (I am responding from home!). The Mother then said it will be highly unlikely for you to go against what your senior has said.”

She also confirmed this when she gave her evidence at the final hearing on 13 July 2015. And, why would she misremember this conversation? That was the object of the conversation. She “had to weigh in what the social worker said.”

However, on 11 May at 08:05 Ms Fraser sent an e-mail to OP stating:

“I wish to clarify the following points regarding the Mother’s request to change her script.

Firstly I advised that the prescriber had to be responsible for assessing any changes – we do not provide meths or monitor it.

Secondly I was curious at the reasoning behind such a request and I suggested that BDP consult with the pharmacist as to pick up times. This is because I am aware on occasion the Mother has not picked up until after 12 – therefore I was curious as to how and why she should be struggling in the morning.

Thirdly there is still a sense of chaos with inconsistent attendance and informing prof different things at different times.

I also wondered why now? What is different that that is causing this difficulty now and not before. This is important as mum is reporting to everyone that she is managing and everything is going well at home.

It is my view that BDP need to assess the above and then make a decision – this is not for CYPS to make that assessment and that needs to be reinforced to the Mother.

The Mother already has a difficult relationship with CYPS and I do not think it is fair that this explanation has been provided to the Mother – please can this be addressed, plus I would like to know what the pharmacist has to report.”

OP’s response later that morning states as follows:

“Thanks for your e-mail. I would like to inform you that the GP is happy for the Mother to have her medicines to take away and just wanted your in put into it. Obviously we make assessments based on how a patient presents to us at surgery and we have absolutely no clinical grounds or concerns according to the risk assessment to deny this.

If the patient presents as stable, attends most appointments but we are seeing a lot of concern from social services, then we have to include you in the decision making process because you see the client in her home environment where as we don’t.

If the decision is entirely up to her GP and BDP then based on what is presented at surgery, we would give her the medication to take home.

I am sorry that you feel that I needed not to have said this to the Mother but I have to be completely honest in explaining the decision making process and it is true that her GP was happy to give her a take away dose unless you felt otherwise. In this case, you feel that her life is chaotic and I must feed this back to her as the reason for denying the take away doses. We have our own guidelines and risk assessment processes which we have done but due to your involvement with the Mother we also have to take your view and I don’t think it is unreasonable to do so and feed this back to the Mother.”

I make the finding sought in the context of BCC’s policies, but, given Ms Fraser’s e-mail of 11 May 2015, I am satisfied the amended note reflects the content of her e-mail.

b) LF provided the document at G16 in a format that concealed the date on which the document was edited and the fact that it had been edited, and did so with the intention of concealing from the court and the parties the fact that the record had been edited following the order for disclosure on 2 July, the exchange of e-mails chasing that disclosure and the commencement of the trial.

She alleges she once again printed using “Ctrl” and “P.”

This, in my view, is too much of a coincidence. Only two pages in section G (G5 and G16), out of one hundred pages, were printed in this way.

On the balance of probabilities I am satisfied that finding 3(b) is made out.

4) July 2015 the improper editing / creation of logs (and their presentation as contemporaneous records when they were not) was done with a view to bolstering the Local Authority’s final evidence in light of challenges made to the basis of the assessment and findings sought.

Linda Fraser vehemently denies this. She states that the amendments were made to ensure accuracy.

I have already made findings in relation to the alteration of the note dated 14 December 2014 and in relation to documents G5 and G16. On that basis, I conclude that this finding is also made out.

5) 13-14 July 2015:

a) During her sworn evidence LF lied about having made the edits, stating that she had not done so, knowing this to be false;

She accepts that she denied making the edits during cross-examination. This was, she thinks, because she was being showered with questions that were accusing her of having falsified information and it was “out of the blue” that someone would interpret amending the case notes in that way. She did not think she had falsified anything.

She states that she did not lie intentionally. She says that she should have asked for a short break or found some way of slowing it down and explaining that there was no sinister intent or falsification involved. She was very shocked at the suggestions that were being put to her and this affected how she responded.

I hope, given my 16 years of experience as a District Judge, that I would be sensitive and conscious of a witness who was in some distress. That was not the impression I had of Linda Fraser when she gave her evidence at the July 2015 final hearing. As I have said earlier, she was absolutely adamant that she had not edited the notes. I have highlighted in my notebook the phrase she used, namely “I did not edit these notes.” I asked her why she had gone through the note on a “quality assurance” basis and, although I have noted no answer to that question in my notebook, the transcript indicates she responded as follows: “In terms of sending them off I wanted to make sure that everything was there and correct to be sent off.” Again, in my view, that is too much of a coincidence.

She could have reflected, or asked for a break. The note was only altered a few days before the final hearing, the afternoon following the hearing when I had ordered disclosure. She also made significant alterations. It beggars belief, in my view, that she could not remember she had altered that note.

I am, accordingly, satisfied that this allegation is made out.

b) That during her sworn evidence LF suggested that CD had edited the records on a date prior to 2 July, knowing that to be false;

She states that this was only a suggestion as she could not recall making the edits. She was simply trying to be helpful and she did not say this, knowing it to be false. She had not intended to implicate CD in any way.

I have already said above that it beggars belief that she could not remember altering this note, bearing in mind how close to the final hearing she had done so. So, I conclude this finding is also made out.

c) That during her sworn evidence LF fabricated a “QA” meeting with CD on 2 July in order to suggest that CD or another professional colleague was responsible for the discrepancies in the records in order to cover for her own wrongdoing;

Linda Fraser states that she did have a discussion with CD in person about the case, although she does not recall the date of that. (Elsewhere in her evidence she talks about speaking to CD back in December 2014.) She did not have a sit-down meeting with her. She did not fabricate the discussion. She says that they discussed the case, and that she clarified certain points with her. She says she would not fabricate things or implicate colleagues to cover her actions.

Again, I reiterate that, if Linda Fraser did, indeed, have a conversation with CD, how could she not remember altering the note of 16 December 2014?

And, if it was a “QA” meeting, surely they would have sat down and amended the note together to ensure accuracy. If she cannot recall the date of that conversation, and if it was sometime prior to 2 July, how would she be able to remember the whole conversation to ensure “QA?”

Again, none of this makes sense to me, and I make the finding sought.

d) During her sworn evidence LF asserted that she had carried out a “sibling assessment” through case directions, knowing this to be false [G18-G53].

She states that she did carry out a “together or apart” assessment in respect of A and B as part of her assessment. Whilst she accepts this may not have been recorded explicitly as case directions, her assessment was based on conversations with CD. She was concerned as to whether the children should be kept together as B had started to mimic A’s behaviour and her emotional presentation was deteriorating.

I can find no reference whatsoever to a sibling or together or apart assessment in any of the case directions at G18-53. Why was this not recorded, given the BCC policy?

I make the finding sought.

6) Generally:

a) The edits made to the log of 16 December 2014 (allegation 1(a)) all relate to issues raised by the mother’s legal representatives in an e-mail on 23 June 2015, in submissions to the court on 2 July 2015 and were made with the intent of bolstering the Local Authority’s case on areas of challenge;

It is clear to me that the edits made to the log of 16 December 2014 were all related to issues raised by the Mother’s legal representatives in an e-mail on 23 June 2015. But I have already made the finding sought at allegation 1(a) and I do not consider it necessary to make a further finding in this respect.

b) The edits made on other occasions (allegations 1(b), 1(c), 2 and 3) are all to documents dealing with issues raised by the mother’s legal representatives in an e-mail on 23 June 2015, in submissions to the court on 2 July 2015 and were made with the intention of bolstering the Local Authority’s case on areas of challenge.

Again, I have made the findings sought in relation to the allegations set out here and I do not consider it necessary to make any further findings.

7) Generally the above findings illustrate on the part of LF:

a) A negative attitude towards the mother;

b) A disregard for the importance of contemporaneous records and evidential probity;

c) A willingness to manufacture, manipulate or distort evidence after the fact;

d) A contempt for the court process and in the face of the court;

e) A disregard for professional colleagues;

f) A failure to adhere to the HCPC Standards of Proficiency for social worker;

g) Dishonesty.

I have to agree.

8) Finding sought against the Local authority:

a) The Local Authority’s stance of resisting disclosure of primary evidence as “wholly unnecessary and disproportionate” in writing [A4-7] and orally at the hearing on 2 July 2015 was inappropriate given the issues raised by the mother’s legal representatives and which led to the listing of the hearing on 2 July 2015;

BCC does not oppose this finding.

b) The Local Authority’s internal procedures, including training, recording and audit processes and procedures were insufficiently robust to prevent the inappropriate editing and creation of records;

In relation to this finding, BCC states as follows:

1) Bristol City Council’s policy gives guidance about the timely completion of accurate case notes and provides guidance as to the auditing of case records. All social workers are made aware of this policy when they join the local authority. Recording and report writing practices are integrated into training and this is provided to all newly qualified social workers. Those practitioners already employed but needing further development on case recording and report writing are offered individual support through current management structures. Case recording is dealt with through the supervision process between social workers and their line managers. This is part of the auditing process that managers undertake.

2) Bristol City Council’s Children’s services are subject to regular inspections by OFSTED. The last inspection took place from 30.09.14 to 22.10.14. The report following that visit can be seen. The report stated that Bristol City Council needed to: “Improve the standard of social work assessments, plans and recording across the city and provide training, coaching and supervision to achieve consistency of practice.”

3) It is accepted on behalf of Bristol City Council that its case recording policy (disclosed previously) is unclear in relation to the amending and modifying of case records. The current IT system allows for records to be amended modified but there is no guidance in relation to this issue. The policy is currently being reviewed by the local authority (along with a number of other social work policies). The Case Recording – policy, procedure and guidance document will be amended and updated to deal with this issue. The review is due to be completed by the end of March 2016. Children’s Services staff will be offered briefings in relation to the new policy. This will include clarification of the changes within the policy.

4) It is accepted that the report by QR highlights discrepancies within the IT system used by Children’s Services. Subject to the court’s permission, this report will be disclosed to the IT provider so that appropriate action can be taken to locate and remedy any flaws within the system.

Given that BCC acknowledge that they should revise their policy and, given the findings by OFSTED, I make this finding. I do, however, acknowledge that it may be difficult for a local authority with all its financial constraints and pressures to fully appreciate its lack of robustness until a matter such as this is properly investigated.

c) The local Authority’s internal procedures, including its legal audit procedures, were insufficiently robust to identify the evidential weakness and improprieties prior to service and the commencement of the trial, leading to the Local Authority’s presentation of an inaccurate and unfair case based on flawed evidence, uncertainty and stress for the family and a delay in the resolution of the proceedings.

In relation to this finding, BCC states as follows:

1) There is no formal internal procedure or formal legal audit procedure. The local authority lawyer with conduct of a case will review the local authority evidence as this is received. Local authority child protection lawyers have no direct access to the children’s services case recording system. Guidance is provided to social workers regarding the importance of providing all evidence. This is contained in the Bristol City Council legal handbook which is available on the Bristol City Council internal website. The relevant extract in relation to this issue is as follows:

“You should not presume that because you have the document or because it is on the electronic system that your legal representative will have them. You should also send to your legal representative any document which undermines the authority’s case – i.e. documents which aren’t very helpful.

The Local Authority has a duty to present all facts to the Court in a fair and balanced way. The Local Authority lawyer is responsible for fulfilling the Local Authority’s disclosure obligations. The duty is stated in Re R from 2002 but was restated in Kent CC v A Mother, a 2011 High Court case before Baker J.

The key principles are:

1) It is a duty owed to the court both by the parties and their legal representatives to give full and frank disclosure: Practice Direction Case Management, 31 January 1995 [1995] 1 FLR 457.

2) Standard disclosure requires a party to disclose only

a) the documents on which he relies; and

b) the documents which (i) adversely affect his own case; (ii) adversely affect another party’s case; or (iii) support another party’s case; and

c) the documents which he is required to disclose by relevant practice direction: Civil Procedure Rules, rule 31.6

3) The initial onus as to disclosure lies on the local authority which starts care proceedings in which it seeks to establish facts on which decisions about the child’s welfare will be taken. This requires the local authority actively to consider what relevant documents it possesses and whether or not there is any countervailing argument against disclosure, such as public interest immunity: see Re C (Expert Evidence: Disclosure: Practice) [1995] 1 FLR 204; Re R (Care: Disclosure: Nature of Proceedings) [2002] 1 FLR 755.

The current PLO aims to reduce the volume of documents filed within care proceedings and so it is important that the documents to be included n the bundle are actively considered. Discussion with the parties will be required.

Substantial questions around disclosure are more likely to occur in complex cases particularly in circumstances where a separate finding of fact hearing takes place.

2) The local authority has recorded in a series of recitals its position in respect of the evidence presented during the final hearing. A copy is attached for ease of reference. The local authority does not accept beyond those recitals and the case notes accepted by Linda Fraser to have been amended that the case presented to the court was inaccurate, biased or based on flawed evidence. The local authority discharged its duty in presenting evidence from a number of different sources, including agencies and professionals independent of Children’s Services.

3) The recitals referred to above are as follows:

UPON the local authority acknowledging:

1. At the time the first supervision order expired and the case was closed there is no evidence that indicated that the work recommended to be undertaken with this family by Dr Gracias had been put in place or achieved. It is accepted that this was a missed opportunity by the local authority to address the needs of the family.

2. Opportunities were missed, within these proceedings, to work constructively with the mother, in particular, further assessment of the mother by the local authority should have been undertaken rather than solely relying on the pre-proceedings assessment.

3. Miscommunication within the local authority led to the children being informed about these proceedings and the local authority’s plan in a way which was not helpful to their emotional well-being.

4. In light of the particular complexities of this case, any sibling assessment should have been comprehensive and filed as a stand alone document. It is accepted that in this case the assessment should not simply have formed part of another document.

Given the concessions made by BCC, I am not satisfied that I can make this finding.

9) Neither CD nor EF inappropriately edited the log of 16 December 2014.

There is no allegation, and no evidence in this respect, so I make that finding.

Medical evidence submitted by Ms Fraser

Following my draft judgment, I have been asked to address the medical evidence provided by Ms Fraser in November 2015 and January 2016 and the degree, if any, to which it has been taken into account in reaching the findings made.

I am afraid I cannot locate the November 2015 evidence, neither in the court bundle nor on the electronic file. I do, however, have a letter from Dr Ochoa, Occupational Health Physician, dated 7 August 2015 when he states that she is fit to attend court and meetings relating to court proceedings, although it would be helpful if some allowances and additional assistance could be offered on the grounds of her current emotional distress/stress-related condition.

The letters from her GP dated 7 and 8 January 2016 state that, although there has been some improvement in her condition, she continues to suffer from significant symptoms of depression, remains certified as unfit to work and is likely to remain so for several months. Her ability to give evidence may be impaired (in relation to future evidence).

When she gave evidence in July 2015, there was absolutely no sign, or any evidence, that she was poorly at that stage. She adamantly denied altering the Gardiner Haskins note when, as I have said, she did it following the hearing of 2 July and how could she possibly forget that, in the context of that hearing when the local authority opposed the order I made. And why, after the order I made for disclosure, did Ms Fraser think it was right to alter those case notes?

So, I have considered the medical evidence (submitted after her testimony in July) but it does not alter my findings.

The position statement of the intervener dated 06.11.15 and her oral closing submissions

I acknowledge that Ms Fraser apologises to the court, the children and the Mother “for failures in her professional perspicacity and conduct.” She apparently “panicked under cross-examination flooded with anxiety amidst the realisation that she was being accused of falsification of evidence or culpable ‘tampering.’”

I am not of the view that “records were amended to make benign alterations,” as I have indicated in this judgment.

An issue has been raised as to the scope of the oral evidence permitted at the January 2016 hearings, and the scope of the closing submissions requested. Although there were some issues which I did not consider particularly important to the resolving of the issue before me (e.g. some questions raised by Mr Goulden on behalf of the children), I am entirely satisfied that I neither restricted the scope of oral evidence or the oral submissions. As everyone knows, I would never do that. I am very conscious of the parties’ Article 6 rights.

I have taken account of the intervener’s oral submissions at the conclusion of the case, but I have analysed carefully all the findings sought and those submissions, again, do not alter my findings.

The Mother’s Human Rights Act claim

I am aware that a potential Human Rights Act claim has been drafted on behalf of the Mother, but that public funding has been refused in this respect. This judgment may clarify certain issues if funding is applied for once more.

District Judge Julie Exton

1 April 2016

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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> A and B (Children) [2016] EWFC B115 (1 April 2016) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2016/B115.html Cite as: [2016] EWFC B115

England and Wales Family Court Decisions (other Judges)