(Family Division, Cobb J, 9 July 2013)
During proceedings involving cross applications for s 8 orders in relation to the 6-year-old child the father made a number of allegations that the mother had fabricated illnesses in relation to the child.
The judge ordered the local authority, which was not a party to the proceedings, to conduct a s 37 investigation. In providing the local authority evidence to the court, the social worker admitted that she had not had regard to the Supplementary Guidance to Working Together to Safeguard Children: Safeguarding Children in whom illness is fabricated or induced (supplementary to Working Together to Safeguard Children (DCSF, 2006)). The local authority took the opportunity to reconsider its position overnight. Following the evidence the parents entered into discussions which prompted the local authority to decide that the hearing could not proceed as there was need for an urgent legal planning meeting and the case was transferred to the High Court.
The father applied for a wasted costs order in relation to the wasted fact-finding/final hearing for £10,311 against the local authority.
The s 37 report produced by the local authority was a superficial read, of a poor standard. Only limited enquiries had been made and there were significant gaps in the report. It did not begin to address in a meaningful way the serious issues involved. A further s 37 report had been produced which concluded that the child was not at significant risk of harm in the mother's care. Neither report assisted the judge at the fact-finding hearing.
The failures in this case were not minor. They were extensive and had a profound effect on the proceedings. The local authority had failed fundamentally to investigate, address, or analyse the serious issues in the case raised by the father's allegations when it prepared its s 37 report. There had been systemic failure by the local authority to offer training of social workers in cases of this kind. In light of the decision in Re T (Children: Care Proceedings: Serious Allegations Not Proved)  UKSC 36)  1 FLR 133, the local authority's hard-pressed resources could not release it from its clear statutory duty.
A local authority in a private law case in which a s 37 direction had been given was sufficiently ‘closely connected' with the litigation to justify a costs order. When a s 37 order was made, the court also had the power (if the relevant ‘threshold' was established under s 38(2)) to make an interim care order. Although this did not happen here, this power illustrated the extent to which the court can, if it considered it appropriate, draw a local authority directly into private law process of this kind and underlined its ‘close connection' with the subject matter of the proceedings.
The father was awarded his wasted costs.