Making a complaint about a professional

Bringing proceedings for contempt against a professional

H had a relationship with his daughter B but it broke down; he believed that this was due to the malicious influence of B’s mother and grandmother who encouraged her to become alienated from him. He make an application to the family court in 2013 to attempt to restore his relationship with his daughter, but to no avail.

He then ran out of money and could no longer afford legal representation. As a litigant in person he attempted to have a the mother’s solicitor and two Cafcass officers sent to prison for what he alleged were to their respective failings and breaches of court orders which had a negative impact on his case to have contact with his daughter. [See the judgment in the case of Dent, Mackay, Harman v H [2015] EWHC 2090].

He alleged the mother’s solicitor had abused her position as a ‘trusted officer’

…to act in what was effectively a quasi-judicial manner when persuading [H] towards a slanted outcome’ by giving false legal advice in relation to H and Ms McKay in relation to international and/or European law and using deception and threats to achieve the outcome she sought for her client.

The court did not find that H’s application had any merit and went even further, striking out the applications pursuant to FPR 2010 r 4.4 as:

disclosing no reasonable grounds for bringing the application; and
an abuse of the court’s process, bearing in mind the overriding objective in FPR 2010 r 1.1; and
the failure to comply with the requirements of FPR 2010

The case is essential reading for anyone who is contemplating these kind of proceedings and sets out clearly the necessary procedural and legal requirements.

It is crucial to be clear about what you say they did wrong

Part 37 of the Family Procedure Rules 2010, supplemented by Practice Direction 37A, applies to such applications. H sought committal orders under both Chapter 2 (breach of a judgment, order or undertaking to do or abstain from doing an act) and under Chapter 4 (interference with the due administration of justice). To proceed under Chapter 4, H needed the court’s permission to proceed (FPR r 37.13(1) and (2)).

FPR r 37.10 sets out how to make a committal application. This is using the Part 18 procedure in the proceedings in which the judgment or order made, or undertaking given. The application notice MUST

set out in full the grounds on which the committal application is made and must identify, separately and numerically, each alleged act of contempt including, if known, the date of each of the alleged acts; and
by one or more affidavits containing all the evidence relied upon.

It was vital that H was clear about what he was alleging the professionals had done wrong.

In order to get the permission of the court to carry on with his application, the burden of proof was on H to show that the defendants had acted to interfere with the due administration of justice; and
The defendants needed to know what they were defending themselves against; this is a very serious application that could end up with them in prison.

None of H’s committal application notices complied with the procedural requirements to set out the case precisely against the defendants and the court was not prepared to waive this procedural irregularity (see PD 37A para 13.2), because it can only do so when it is satisfied that no injustice has been caused to the defendant by the defect.

62. Here, the defects go to the very heart of the matter. Far from setting out in full the grounds on which each application against each Defendant is made with specific details of the alleged act or acts of contempt and the dates upon which they are said to have been committed, there is no specific information at all save for a series of very general allegations. I take the view that the notices as they stand would not provide any of these Defendants with the full particulars to which they are properly entitled. Serious allegations have been put before the court and H invites me to impose upon each a sentence of imprisonment which would have far-reaching and potentially devastating consequences in respect of their professional careers and livelihoods, quite apart from the deprivation of their personal liberty. Each has a right to know the case which is put against him or her.

Even if you are clear, the court may decide that committal is not in the public interest

The court also considered the case of KJM Superbikes Ltd v Hinton : Practice Note [2008] EWCA Civ 1280, [2009] 1 WLR 2406. In this case, the Court of Appeal considered an application by a litigant in person to bring committal proceedings against a witness who was said to have made a deliberately false statement to the court in civil proceedings. The Judge at first instance (applying the Civil Procedure Rules, which are broadly similar to the FPR) refused permission because committal would be a disproportionate response and was not in the public interest. This was upheld on appeal.

The Judge in H’s case agreed with what was said by the Court of Appeal by Moore-Bick LJ at page 2412 :-

’16 Whenever the court is asked by a private litigant for permission to bring proceedings for contempt based on false statements allegedly made in a witness statement it should remind itself that the proceedings are public in nature and that ultimately the only question is whether it is in the public interest for such proceedings to be brought. However, when answering that question there are many factors that the court will need to consider. Among the foremost are the strength of the evidence tending to show not only that the statement in question was false but that it was known at the time to be false, the circumstances in which it was made, its significance having regard to the nature of the proceedings in which it was made, such evidence as there may be of the maker’s state of mind, including his understanding of the likely effect of the statement and the use to which it was actually put in the proceedings. Factors such as these are likely to indicate whether the alleged contempt, if proved, is of sufficient gravity for there to be a public interest in taking proceedings in relation to it. In addition, the court will also wish to have regard to whether the proceedings would be likely to justify the resources that would have to be devoted to them.

17 In my view the wider public interest would not be served if courts were to exercise the discretion too freely in favour of allowing proceedings of this kind to be pursued by private persons. There is an obvious need to guard carefully against the risk of allowing vindictive litigants to use such proceedings to harass persons against whom they have a grievance, whether justified or not, and although the rules do not prescribe the class of persons who may bring proceedings of this kind, the court will normally wish to be satisfied that the applicant was liable to be directly affected by the making of the statement in question before granting permission to bring proceedings in respect of it. Usually the applicant will be a party to the proceedings in which the statement was made, but I would not exclude the possibility that permission might be granted to someone other than a party if he was, or was liable to be, directly affected by it. In my view there is also a danger of reducing the usefulness of proceedings for contempt if they are pursued where the case is weak or the contempt, if proved, trivial. I would therefore echo the observation of Pumfrey J in the Kabushiki Kaisha Sony Computer case [2004] EWHC 1192 (Ch) at [16] that the court should exercise great caution before giving permission to bring proceedings. In my view it should not do so unless there is a strong case both that the statement in question was untrue and that the maker knew that it was untrue at the time he made it. All other relevant factors, including those to which I have referred, will then have to be taken into account in making the final decision.’

Balancing the parent’s right to criticise against the professionals’ obligation to do their job

The judge pointed out that H’s complaint against the solicitor, ignored the fact that her professional duties lay with her own client, B’s mother.

She had no contractual relationship with H and at no time was her professional relationship with him impressed with any fiduciary or legal obligations. She had a professional obligation to act in the best interests of her client who, relying on the content of the Cafcass report, was unwilling to agree to an order for direct contact when such an order ran contrary to B’s clearly expressed views. Ms Harman had an obligation not to mislead the court. There is no evidence before me that she did so, still less that she fraudulently or knowingly practised a deliberate deception on the court.

It is clear that the ‘public interest’ test will be a high one in such cases and the court is likely to want to protect those who exercise public functions. The Judge went on to cite the judgment of the President of the Family Division In Re J (Reporting Restriction: Internet: Video) [2013] EWHC 2694 (Fam), [2014] 1 FLR 523, which highlighted points of fundamental importance:

the recognition of ‘the importance in a free society of parents who feel aggrieved at their experiences of the family justice system being able to express their views publicly about what they conceive to be failings on the part of individual judges or failings in the judicial system’.
the acknowledgement that the ‘fear of … criticism, however justified that fear may be, and however unjustified the criticism, is, however, not of itself a justification for prior restraint by injunction … even if the criticism is expressed in vigorous, trenchant or outspoken terms … or even in language which is crude, insulting and vulgar’.
But there is a fundamental difference between ideas, views, opinions, comments or criticisms, however strongly or even offensively expressed, and harassment, intimidation, threats or menaces. The one is and must be jealously safeguarded; the other can legitimately be prevented.
The freedom of speech of those who criticise public officials or those exercising public functions, their right to criticise, is fundamental to any democratic society governed by the rule of law. Public officials and those exercising public functions must, in the public interest, endure criticism, however strongly expressed, unfair and unjustified that criticism may be. But there is no reason why public officials and those exercising public functions should have to endure harassment, intimidation, threats or menaces.’

Judicial Bias

What can I do if I think the Judge has treated me unfairly?

Judges are human beings and therefore can make mistakes and get things wrong. It is possible that the Judge in your case has treated you unfairly and made decisions about your case which are not based on the evidence, but are instead a reflection of that Judge’s bad mood on the day.

In some circumstances a Judge should definitely not continue to hear a case and you would expect the Judge to recognise this from the outset – for e.g. if the judge is related to or married to any party to the case or has previously acted as a lawyer in the case.

This post will consider what happens when you are worried that a Judge is biased against you. How can you show that this happened, and what are your remedies?

Establishing Judicial Bias

This is an objective test – would the Judge appear biased to an informed observer? It is very important that court proceedings are seen to be fair.

Tribunals must appear in an objective sense to be truly independent and impartial. This perception is essential to maintaining public confidence in the judiciary and the legal system as a whole. The legal system is a central social good in any successful state. Its substantive, as well as apparent, integrity is an important matter.

The House of Lords (now known as the Supreme Court) considered the test for establishing judicial bias, in the case of Porter v Magill [2002] AC 357. Lord Bingham said at paragraph 106 that the essential question was:

…whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.

This test was confirmed as still good law by the Court of Appeal in the case of Harb [2016] EWCA Civ 556 (mentioned below).

For example – was the Judge rude to you? Did the Judge refuse to let you ask questions or speak about something you thought was relevant? This could be an example of a Judge acting unfairly – but you will need to consider carefully the Judge’s duty to actively manage the cases in his/her court, which we discuss below.

The case of G (Child) [2015] EWCA Civ 834 is a good example of how a judge was found to be acting unfairly from the nature and quality of her interventions and criticism of counsel. The Court of Appeal commented at para 38:

As I have said, the fairness of a hearing cannot be assessed mathematically or scientifically. Nor is it dependent on a comparison between the way in which the judge has treated the two sides. If one party has been treated in such a way as to disable him or her from advancing his or her case properly, the hearing is not rendered fair by the fact that the other party has been treated equally unfairly. For what it is worth, however, a comparison of the quantum of intervention by the judge on the second day of each counsel’s cross-examination of the other party shows, I think, that Mr Cameron was rather less hampered than Ms Toch.
It is necessary to look not only at the quantum of the judge’s interventions but also at their nature. As Mr Turner submitted on behalf of the father, a litigant does not have an unrestricted right to present a case in such a way as he or she or his or her lawyers may choose. A judge sometimes has no choice but to intervene during the evidence because of the nature of the questioning or in order to manage the use of court time (as the father would submit was necessary here). Furthermore, the interventions can sometimes be a help to counsel in his or her questioning rather than a hindrance.

In this case, the Judge had clearly crossed the line and her interventions were a hindrance:

Standing back again from the detail, it seems to me that the judge’s interventions on the second day of Ms Toch’s cross-examination of the father differed in character from the sort of intervention, sometimes quite frequent but nonetheless part of the normal course of a trial, in which the judge simply seeks clarification of a page number or an aspect of questioning or, having an eye on the clock, seeks to move matters along. My assessment is that on this second day the judge’s interventions were such that they largely prevented Ms Toch’s cross-examination from getting off the ground or at least significantly hampered its progress and also took up a disproportionate amount of the limited time available to Ms Toch. They may also have undermined Ms Toch with the witness, diluting her questioning not only by interrupting its flow but also by leading the father to anticipate that it may be declared by the judge to be without proper foundation or badly put. This was a case in which, as the judge herself observed, the credibility of the parties was particularly material. Cross-examination was therefore of central importance in enabling the judge to make reliable findings of fact on their respective allegations. The judge’s interventions were such that I am unable to be sure that the father’s evidence was tested as was required.

Judges ought to be wary of making jokes in case they cross the line between what is tolerable and what is impermissable. See the comments of Ward LJ in paragraph 30 of El-Faragy v El Faragy and others in 2007 where he concluded that a fair minded observer would conclude the Judge was biased:

When I said at the beginning of the judgment that I found this case embarrassing, no little part of my embarrassment comes from my belief that the injection of a little humour lightens the load of high emotion that so often attends litigation and I am the very last judge to criticise laughter in court. I fully appreciate the conventional view that jokes are a bad thing. Of course they are when they are bad jokes – and I am sure I have myself often erred and committed that heinous judicial sin. Singer J. certainly erred in this case. These, I regret to say, were not just bad jokes: they were thoroughly bad jokes. Moreover, and importantly, they will inevitably be perceived to be racially offensive jokes. For my part I am totally convinced that they were not meant to be racist and I unreservedly acquit the judge of any suggestion that they were so intended. Unfortunately, every one of the four remarks can be seen to be not simply “colourful language” as the judge sought to excuse them but, to adopt Mr Randall’s submission, to be mocking and disparaging of the third respondent for his status as a Sheikh and/or his Saudi nationality and/or his ethnic origins and/or his Muslim faith.

What does ‘fair minded and informed’ mean?

This is an objective test, meaning that the personal views of the person making the accusation of bias is not enough to decide the issue. This is clearly sensible as the person complaining of bias may not be the most reliable person to make that claim. Just because a Judge disagrees with you, doesn’t make that Judge biased against you.

But if the Judge’s behaviour would seem unfair to an outside observer who doesn’t have your personal investment in the outcome, then it is likely that we can conclude that Judge did indeed act unfairly.

In Gillies v Secretary of State for Work and Pensions [2006] 1 WLR 781, at 787 it was held by the House of Lords that:

the fair-minded and informed observer can be assumed to have access to all the facts that are capable of being known by members of the public generally, bearing in mind that it is the appearance that these facts give rise to that matters, not what is in the mind of the particular judge or tribunal member who is under scrutiny.

However, this test has been criticised

This is fine, as far as background or simple facts are concerned, such as the evidence given, the treatment of the parties by the tribunal and the terms of any decision made. It is problematic, however, when the intricacies of a particular field of decision making are attributed to the onlooker. These complex facts are unlikely to be known by anybody other than those who already practice in the particular field. The danger is that vested with this knowledge our notional observer will overlook matters that would otherwise appear to general members of the public as being suspicious. This is where confidence in the system is lost.

The court emphasised in Lesage v Mauritius Commercial Bank Ltd [2012] UKPC 41, that it was important to look at the proceedings as a whole to see if an impression of bias was created.

But a Judge has a duty to case manage – when does this slip into unfairness?

Christopher Sharp QC considered the issue of bias in care proceedings and in particular the case of in the case of Re Q (Children) [2014] EWCA Civ 918, where he represented the LA. This was a very unusual case in that every party, apart from the guardian appealed about the way the Judge had handled it, leaving the Court of Appeal with seven notices of appeal to consider.

For favourable comment on the decision in Re Q and the questions to ask when looking at fairness of the proceedings see M, Re [2018] EWCOP 4 (08 February 2018)

As suesspiciousminds comments:

appeals on the point are pretty rare and successful appeals rarer still. Q is one of the latter, and as such a rare breed is worthy of some consideration.

The Judge made various comments about the state of the evidence at a Case Management Hearing (CMH) i.e. before all the final evidence had been heard. This lead to serious concerns from the lawyer present that the Judge was simply not prepared to consider any issues that he had not generated himself.

The Court of Appeal commented at paragraph 50 of their judgment:

Such expressions of judicial opinion, given the need for the judge to manage the case and be directive, are commonplace and would not be supportive of an appeal to this court based upon apparent judicial bias. The question in the present appeal is whether the other observations made by the judge, and the stage in the overall court process that those observations were made, establishes circumstances that would lead a fair-minded and informed observer to conclude that there was a real possibility that the judge was biased in the sense that he had formed a concluded view on the mother’s allegations and her overall veracity.that it is often difficult for a judge in care proceedings to both actively manage the case and yet not make decisions before all the evidence is before the court:

It is clear that a judge hearing a family case has a duty to deal with cases efficiently. Judges are expected to ‘actively manage’ cases [FPR 2010, rr 1.1(1) and 1.4(1)]. This will include consideration of a range of issues as set out at FPR 2010, r 1.4(2), including early identification of the relevant issues [r 1.4(2)(b)(i)] and deciding promptly which issues need full investigation and hearing [r 1.4(2)(c)(i)].

As Christopher Sharp QC comments:

There is a very real danger that in this process judges are going to be seeing issues without the benefit of all the evidence (which may not yet have been gathered), or without the benefit of a full understanding of both sides of an argument. The judge therefore has a fine line to walk between “robust case management” and appearing to jump to conclusions which may infect the whole process with the appearance of bias

The Court of Appeal did not want to criticise any Judge who was doing what he was supposed to do and deploying ‘robust case management’. However, there is a line between carrying out that duty and making premature decisions about a case – and the Judge crossed that line in Re Q. The Court of Appeal commented that he:

strayed beyond the case management role by engaging in an analysis, which by definition could only have been one-sided, of the veracity of the evidence and of the mother’s general credibility. The situation was compounded by the judge giving voice to the result of his analysis in unambiguous and conclusive terms in a manner that can only have established in the mind of a fair-minded and informed observer that there was a real possibility that the judge had formed a concluded and adverse view of the mother and her allegations at a preliminary stage in the trial process.

McFarlane LJ however also observed that:

The role of a family judge in this respect is not at all easy and I would afford the benefit of the doubt to a judge even if the circumstances were very close to or even on the metaphorical line.

Therefore it is not going to be easy to establish judicial bias in a family case and you will need to be clear about why and how a Judge crossed over the line from robust case management into being biased against you. But if you can establish bias, the consequences are clear.

A Judge can be found to act unwisely – but not necessarily be biased

A useful case is Bubbles & Wine Ltd v Lusha [2018] EWCA Civ 468 (14 March 2018) where the trial judge had a private conversation with the barrister for one party – primarily about the Judge’s daughter who had undertaken a mini pupillage at that barrister’s chambers. However, the Judge also made some brief comment about what he thought about the state of the evidence and asked the barrister to pass on his comments to the other side. This caused alarm for the other side who wanted the Judge to recuse himself.

The Court of Appeal had some strong words for the Judge’s behaviour in having such a conversation in private and the justifications he attempted to give for why he made that decision. However, their conclusion was clear at para 42:

Applying the established legal test of apparent bias, I am satisfied that the fair-minded and informed observer, having considered all the relevant facts, would conclude that the conduct of the judge in this case, wrong-headed as it was, did not indicate any real possibility that he was biased. I would accordingly dismiss the appeal.

What happens if the Judge is found to be biased?

If the case is on-going, the Judge will have to step down and the case will be re-heard before a different Judge. This is called ‘recusal’.

If the case is finished, then an allegation of judicial bias will be a ground of appeal against his or her decisions. The importance of judicial integrity is such, that if you can establish bias, the fact that a further hearing will be inconvenient and cost money is irrelevant – the Judge must step down.

Lord Kerr in the case of Lesage commented:

59. In a case where it has been concluded that there is the appearance of bias and unfairness, however, these are consequences which simply have to be accepted. They cannot outweigh the unanswerable need to ensure that a trial which is free from even the appearance of unfairness is the indispensable right of all parties and is fundamental to the proper administration of justice. In AWG Group Ltd v Morrison [2006] 1 WLR 1163, para 6 Mummery LJ dealt with this issue thus:

“Inconvenience, costs and delay do not, however, count in a case where the principle of judicial impartiality is properly invoked. This is because it is the fundamental principle of justice, both at common law and under article 6 of the Convention for the Protection of Human Rights. If, on an assessment of all the relevant circumstances, the conclusion is that the principle either has been, or will be, breached, the judge is automatically disqualified from hearing the case. It is not a discretionary case management decision reached by weighing various relevant factors in the balance.”

60. The Board endorses this approach. Where the appearance of unfairness or bias has been established, ordering a new trial free from the taint of that manifestation is unavoidable.

What’s the procedure for recusal?

With thanks to Sam for finding the case

This was discussed in the case of El Faragy and Others in 2007. Lord Justice Ward suggested the following procedure at paragraph 32:

First, if circumstances permit, an informal approach should be made to the judge (for example by letter) making the complaint and inviting recusal. While judges should not yield to frivolous objections, a judge can nevertheless “with honour totally deny the complaint but still pass the case to a colleague”. If the judge does not feel able to do so, then it may be preferable, if it is possible to arrange it, to have another judge take the decision, “hard though it is to sit in judgment of one’s colleague, for where the appearance of justice is at stake, it is better that justice be done independently by another rather than require the judge to sit in judgment of his own behaviour”.

The judgement gives no further clue as to what is meant by ‘if circumstances permit’ and it is difficult to see how family cases would allow the luxury of time to write such a letter and await a reply. It is respectfully suggested that it would probably be better if you raise the matter as soon as you can in court.

UPDATE – information from one of our readers July 2015

It looks as if writing a letter is the way to go – thanks to one of our readers who is attempting to convince a judge to recuse himself. They have been told that the Court of Appeal will pass the application onto a Master without a court order. The application must include a covering letter, the letter to the judge and his reply. We would be interested to hear from anyone else who has tried this.

Mr Justice Peter Smith

For an example of a Judge – Mr Justice Peter Smith – who grudgingly agreed to step down after airing his personal views about his lost luggage in a dispute involving an airline, see this post from Legal Cheek and a masterly take down from suesspiciousminds. The same judge was asked to recuse himself in 2007.

EDIT 17th June 2016; for further comment from the Court of Appeal with regard to the behaviour of this judge regarding a letter he wrote criticising the conduct of a member of one particular Chambers, see the case of Harb v HRM Prince Abdul Aziz Bin Fahd [2016] EWCA Civ 556 and note the comments at para 68:

In his letter to the claimant’s solicitors dated 12th February 2016, the judge accepted that he should not have written the Letter. It is difficult to believe that any judge, still less a High Court Judge, could have done so. It was a shocking and, we regret to say, disgraceful letter to write. It shows a deeply worrying and fundamental lack of understanding of the proper role of a judge. What makes it worse is that it comes on the heels of the BAA baggage affair. In our view, the comments of Lord Pannick, far from being “outrageous” as the judge said in the Letter, were justified. We greatly regret having to criticise a judge in these strong terms, but our duty requires us to do so. But it does not follow from the fact that he acted in this deplorable way that the allegation of apparent bias must succeed. It is to that question that we now turn.

The court concluded at para 74 of its judgment:

We are prepared to assume that the informed and fair-minded observer, knowing of the Article, would conclude that there was a real possibility that the judge was biased against all members of Blackstone Chambers, at least for a short period after the publication of the Article. But for the reasons we have given, the observer would not conclude without more that there was a real possibility that this bias would affect the judge’s determination of the issues in a case in which a party was represented by a member of Blackstone Chambers.

Complaints against a public body – a parent’s advice and perspective

We are grateful for the comments of one of our readers ‘C’ who has not had a good experience of social work intervention, nor found that his complaint was dealt with either quickly or competently. He eventually took his complaint to the Local Government Ombudsman and found their response unhelpful. What happens when you have reached the end of the complaints process but you still don’t think you have achieved resolution of your complaint?

For discussion of the various legal remedies against mistakes or poor performance of a public body, see this post.

When bad mistakes have been made, a kind of bureaucratic protectionism kicks in.

What can you do when things go wrong?

One of the greatest inhibitors in terms of application for Judicial Review is that the decision must almost always be challenged within 90 days – otherwise the judge may rule you out of time.

Individual social workers or hospital professionals registered with Health and Care Professions Council can be investigated by them for malpractice. All members have a duty to follow a code of ethics. So it is worth pursuing things there.

With regard to Freedom Of Information requests, I would discuss the best way forward here, with the Information Commissioner’s Office. There are exemptions to your receiving personal information but these can be considered and overruled by the (ICO).

If names were altered and logged inaccurately, etc. then these are breaches of the Data Protection Act which the ICO are supposed to police. They are toothless and pettifogging… but if you persist and manage to drill your way through to the upper levels of management, you can get a more sympathetic ear as they are interested in any cases of flagrant data injustice which might end up in them getting stronger powers in data protection from the government. You can sometimes get access to Data Subject Access Request information that is exempted, if the data may be required for future legal proceedings.

Contact the ICO on 0303 123 1113 and open a case with them. Press them to investigate it. Copy everything to your MP. [The professionals] will not want to appear uncompliant in the eyes of the ICO as the ICO is able to hand out hefty fines to corporate bodies. Force them to acknowledge your issue.

Do your best to be clear and concise in your dealings with these people. Remember they are dealing with this stuff all day, every day… and have limited patience for your emotion. Even though of course your outrage is entirely justified, it may just become an extra burden for them – and thus hamper your progress.

Why do things go so wrong?

In terms of [descrbing professionals as] lying, cheating and betraying – I realise that it is more likely unconscious, systematised behaviour and so defining it as lying, cheating and betraying may be pejorative. It is inept in the sense that a broken food processer throws food all over the room. The result is a mess: the solution is to fix the processor. Or to throw it out and go back to chewing.

Isn’t simple human error still misfeasance, when those errors represent breaches in frameworks that they are supposed to comprehend and follow?

I see how chronic ineptness can be portrayed as simple human error, and is not necessarily ‘conscious’. Mind you, being in a stupor is no defence when driving – so it is difficult to appreciate why it should be admissible when administering the law..

And what are the consequences?

The experience of ‘C’ has been that the available remedies are either subject to strict timescales or depend on being able to prove bad faith on the part of professionals, which is difficult to do.

This is a steep track to negotiate with limited funds. It ain’t justice as anyone unaccustomed to bureaucratic process and unlimited time to play with other peoples lives and money, would recognise.

And the consequences are the destruction of any constructive professional relationship and a sense of despair for the parents left without a remedy.

I think bitterness at injustice and lack of closure makes one deaf to rational argument. It is somewhat remarkable that [some parents are] still exploring legal routes, and not investigating home bomb-making, or kidnapping strategies…

As for being a victim, the unfortunate truth of post-capitalism, is everywhere that you pay with your attention. In my complaint, I have helped justify their existence, improved their systems of control, and helped guarantee their salaries. There is no comfort in that.

My heart goes out to [families in a similar position] – and I fear for them. They seem distorted by unassuageable pain. Whatever the justice of their case, or the LA’s actions, the fruits are only bitterness and despair for everyone except those employed to purvey the misery, and uphold the myth of adversarial justice.

Making a complaint about a professional

Social workers and other health and care professionals

There is a very comprehensive and clear guide about making complaints and what happens next from the Family Rights Group here.

Anyone considering a complaint is well advised to download the government’s statutory guidance Children’s social care: Getting the best from complaints. This sets out the frame your complaint is supposed to follow.

The Health and Care Professions Council (HCPC) is an independent regulator set up by the Health and Social Work Professions Order 2001. The HCPC keeps a register for 16 different health and care professions and only registers people who meet the standards it sets for their training, professional skills, and behaviour. The HCPC will take action against professionals who do not meet these standards or who use a protected title illegally.

The HCPC website has information about cases where social workers have been removed from the register for misconduct

See the standards of proficiency for social workers in England.

Social Workers – the ability to work appropriately with others

Standard 9 demands the ability to work appropriately with others, in particular at 9.3:

be able to work with service users and carers to promote individual growth, development and independence and to assist them to understand and exercise their rights .

The British Association of Social Workers is also clear in their Code of Ethics that this must be done. Social workers must be able to explain what is happening and why. ‘Professional integrity’ demands, amongst other things, that:

Social workers should work in a way that is honest, reliable and open, clearly explaining their roles, interventions and decisions and not seeking to deceive or manipulate people who use their services, their colleagues or employers.

Standards of conduct, performance and ethics.

The HCPC also sets out the standards of conduct, performance and ethics expected from registrants. The standards also apply to people who are applying to become registered.

You must act in the best interests of service users
You must respect the confidentiality of service users.
You must keep high standards of personal conduct.
You must provide (to us and any other relevant regulators) any important information about your conduct and competence.
You must keep your professional knowledge and skills up to date.
You must act within the limits of your knowledge, skills and experience and, if necessary, refer the matter to another practitioner.
You must communicate properly and effectively with service users and other practitioners.
You must effectively supervise tasks that you have asked other people to carry out.
You must get informed consent to provide care or services (so far as possible).
You must keep accurate records.
You must deal fairly and safely with the risks of infection.
You must limit your work or stop practising if your performance or judgement is affected by your health.
You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession.
You must make sure that any advertising you do is accurate

What do I do if I want to complain about the local authority?

Section 26 (3) of the Children Act 1989 provides that

Every local authority shall establish a procedure for considering any representations (including any complaint) made to them by—

(a) any child who is being looked after by them or who is not being looked after by them but is in need;

(b) a parent of his;

(c) any person who is not a parent of his but who has parental responsibility for him;

(d) any local authority foster parent;

(e) such other person as the authority consider has a sufficient interest in the child’s welfare to warrant his representations being considered by them,

about the discharge by the authority of any of their [qualifying functions ]in relation to the child.

Resolution of the complaint at a local level

Ask your LA for a copy of their complaints procedure. Make a complaint as soon as you can to the relevant complaints manager. You usually must make a complaint within 12 months of the incident you are complaining about. You are entitled to expect a response to your complaint within a reasonable time.

There should be three stages of investigation, the third stage being a report from an Independent Review Panel. If you are not happy with the outcome of the third stage then you can consider contacting the Ombudsman.

Detailed procedure for the complaint.

Representations may be made orally or in writing: see the Children Act 1989 Representations Procedure (England) Regulations 2006, SI 2006/1738 reg 6.

The Children Act 1989 s 26A puts a duty on the LA to make arrangements to provide an advocate to help either adults or children who want to make a complaint.

If the person complaining is NOT a child, parent or foster parent (see Children Act 1989 s26(3) (e)) the local authority will need to consider if that person has ‘sufficient interest in the child’s welfare’ to mean that that LA should consider his or her complaint. If the LA considers that he or she has sufficient interest, it will process the complaint; if it considers that he or she has not, it will notify him in writing: SI 2006/1738 reg 12.

The LA must consider the representations with the independent person (appointed under SI 2006/1738 reg 17) and formulate a response within 25 working days of the ‘start date’ (as defined in SI 2006/1738 reg 17(4), (5)): SI 2006/1738 reg 17(3).

Where a LA receives a complaint, it must send to the person complaining and any appointed advocate, an explanation of the procedure set out in the Regulations, and offer help on the use of the complaints procedure, or advice about where to get help. SI 2006/1738 reg 11.

Ombudsman

If you are not happy with how your complaint is handled at the local level, you can refer your complaint to the Local Government Ombudsman. See ‘How to Use an Ombudsman in England’.

The Local Government Ombudsman produces a fact sheet:

You should normally complain to the council first.

You should normally complain to us within 12 months of hearing what the council’s final decision is. When you make a complaint to children and family services you should be given information about what will happen to your complaint and how long this will take.

There are three stages, and generally the time to complain to us is if you’re not happy with the outcome at the end of the third stage, after an independent Review Panel has considered your complaint.

Social care complaints can take longer than others to complete. But as long as there is evidence that the complaint is being actively investigated, we would normally want you to allow the council’s procedure to be completed before we would accept the complaint.

To complain to the Ombudsman phone our helpline on 0300 061 0614 (8.30am to 5.00pm, Mondays to Fridays). You will be able to discuss your complaint with one of our advisers. You can text us on 0762 480 3014.

You can complete an online complaint form.

Judicial Review

If you believe you have no other remedy, you can apply to the court for ‘judicial review’ which is the legal mechanism by which the court oversees the actions of public bodies; the court can make declarations that they have acted unlawfully or must stop acting in a particular way. The court also has the power to award damages.

For more information about judicial review, see the Public Law Project or our post here.

Complaints about Lawyers

Solicitors

You should first complain directly to the solicitor and his/her firm. All firms should have a procedure for handling complaints. You can get the details of each firm’s designated complaints handler from the Solicitors Regulation Authority Contact Centre. Call 0870 606 2555 or email: [email protected]

If you are not happy with the firm’s response, contact the Legal Ombudsman on 0300 555 0333.

There is particular guidance for those with mental health difficulties or who work in the field of mental health. See the Law Society website.

Barristers

Again, if the barrister is acting for you, raise your complaint first with the barrister or his/her Head of Chambers. If you are not happy with that response you should contact the Legal Ombudsman.

If you want to complain about a barrister who is NOT acting for you, you should contact the Bar Standards Board and fill in their complaint form. You are entitled to complain about professional misconduct which includes behaviour such as:

misleading the court
failing to keep information confidential
acting dishonestly
acting in a way that damages the reputation of the Bar
discriminating against you

Judges

If you have a complaint about the way a Judge has behaved – rather than a complaint about his or her decision, which would require you to appeal against it – you can contact the Judicial Conduct Investigations Office. However, you must make your complaint within 3 months.

With regard to allegations of judicial bias as the basis of an appeal, see the case of Q [2014] discussed by suesspciousminds.

Doctors

See the General Medical Council website.

The GMC can take action against doctor, including stopping them from practising. They will investigate:

serious or repeated mistakes in clinical care, for example mistakes in surgical procedures or diagnosis, or prescribing drugs in a dangerous way
failure to examine a patient properly or to respond reasonably to a patient’s needs
serious concerns about knowledge of the English language
fraud or dishonesty
serious breaches of a patient’s confidentiality
any serious criminal offence.

Hospitals

See the NHS Choices website.

Since April 2009, the NHS operates a two stage complaint process.

First, ask your GP or hospital for a copy of its complaints procedure which will tell you how to proceed. This is the ‘local resolution’ stage where it is hoped your complaint can be dealt with early. If you are not happy with the response at the first stage, you will need to contact the Parliamentary and Health Service Ombudsman. Call 0345 015 4033.