Shoesmith outrage: a pox on all their houses

by Dennis Kavanagh

Sharon Shoesmith addressed the assembled media last week, fresh from her court of appeal success and promptly rammed her foot so far down her throat it’s a wonder she  didn’t knock her teeth out.

“I don’t do blame”, she revealed, seconds before blaming the police and health departments for the Baby P scandal. “You cannot stop the death of children”, she told the BBC later, an extraordinary statement from someone whose department was supposed to do exactly that. My personal favourite was “I haven’t thought about compensation”; maybe she was asleep while her barrister and the court of appeal discussed damages and remedies before remitting the case back to the administrative division of the high court to settle exactly that question.

If she was never “in it for the money”, as she assured the Guardian later, presumably we’ll see a whacking donation to childline or NSPCC. That at least would put a fitting stop to the merry go round of public money behind two lots of high court hearings, representation of three public bodies and enormous sums in court time.

This is an important and alarming case that has once again set the judiciary on a collision course with public opinion, for three reasons. First, whatever the finer points of judicial review, the consensus is that Ms. Shoesmith presided over a failing department for which she ought to be held accountable, rather than rewarded with damages.

Second, there is a growing perception that if you keep asking the same question to a different judge on a different day eventually the high court roulette wheel will spin your way, however absurd your case.

Third, people are still horrified at the litany of serious failures that led to death of a 17 month old at the hands of his mother, her partner and his brother. It barely needs restating, but this toddler was the victim not just of his abusers, but the multiple authorities that saw and fundamentally failed him 60 times prior to his murder.

Unlike Ms. Shoesmith, let’s “do blame” as regards the court case and see how the various parties fare. Shoesmith presided over abject chaos, basic procedures were ignored, files were lost or left on trains, opportunities were missed and fundamental duties of care ignored. Social workers under her command failed to employ the formidable arsenal of legal protection under the children acts at their disposal. All this from the same borough that failed Victoria Climbié.

What of the secretary of state, Ed Balls? Well, he believes that sacking by press conference on the back of a petition from the Sun is appropriate. He justified that on the basis of urgency, yet had waited over a year until the end of criminal proceedings and competition of an Ofsted report before taking action (after two serious case reviews).

Next up, Ofsted, an authority that had to publicly apologise to his lordship for forgetting to disclose earlier drafts of their report and e-mails relevant to the enquiry. Not just a shocking breach of their legal duty of candour, but an omission that saw the first instance case elongated by months.

Finally, Haringey, an authority whose high court defence effectively amounted to “we were only following orders”, which had appointed Shoesmith in the first place, despite her having no experience of social work (she was a former director of education and a schools inspector). Mr. Justice Foskett, the judge at first instance, could well be forgiven for wishing a pox on all their collective houses. Little wonder that he only just found in favour of Balls, remarking that he did so with a sense of unease.

The high court and court of appeal differed on two points likely to be of more interest to judicial review lawyers than the public. First, the high court held that Shoesmith’s department had co-operated with the Ofsted report and she therefore had an opportunity to put her case.

Second, the high court held that even if that was wrong, her representations, given the lamentable state of Haringey, would have made no difference. The court of appeal found that, given the delay, another seven days to get Ms. Shoesmith’s point of view was reasonable. The court went on to say that you couldn’t just assume those representations would be ignored by the secretary of state or change his view (ho ho, they clearly haven’t met the secretary of state or seen him on telly).

The public are rightly outraged by this expensive sideshow. If she had an ounce of dignity, Ms. Shoesmith would have resigned. Ed Balls and Haringey should have put the lynch mob pitch fork down and listened to the employment lawyers. Ofsted tarnished its own formidable reputation with late disclosure of material. Frankly, if there was ever a case where everyone deserved to lose, this was it.

Dennis Kavanagh is a barrister.

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3 Responses to “Shoesmith outrage: a pox on all their houses”

  1. AmberStar says:

    If it is about process, then can’t the Court uphold Ms Shoesmith’s case on those grounds but refuse reinstatement as a remedy (if she’s asked for that) & award damages that would only cover the costs to her of bringing the action/ appeal?

    Would it be possible for the Court to do that or is my ignorance showing?

  2. Dennis says:

    It is indeed open to the Court to award nominal damages in appropriate cases where the Claimant’s case is judged technically correct but fundamentally vexatious or hopelessly misconceived. This is not such a case on it’s facts and the damages are likely to be substantial. Ms. Shoesmith recognises too much water has flown under the bridge to seek reinstatement so instead seeks damages to reflect 1. the fact she is practically unemployable, 2. The judgment that the dismissal was unlawful and therefore null and void legally (ie. Payment from the point of that dismissal to judgment), 3. Such damages as reflect loss of ancillary benefits such as pension entitlement and 4. The costs of bringing her appeal.

    While the court could in theory award minimal damages that is highly unlikely and would be susceptible to submissions based on the law of damages.

  3. AmberStar says:

    Thank you for the clear & detailed response to my question. It will be interesting to see what the award is.

    If I understand you correctly, there isn’t anything obviously wrong with the recent appeal decision. It will be interesting to see the grounds on which the government challenge it.

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