Few issues create as much public pressure on a government as child protection. As Children’s Minister in 2007 and 2008 I remember the many difficult cases Ed Balls and I dealt with. I saw at close hand the intensity and the challenges surrounding child protection cases.
When the tragic case of Baby Peter became public, after the publication of the serious case review and the end of the criminal trial, I had just moved to be a Minister in another department. But I followed the case very closely in those frenzied weeks in November 2008. And that it is why I am also clear about three key judgements.
First, Ed Balls did not buckle or rush to judgement in the face of media pressure – quite the opposite. Second, and on the basis of the Ofsted report, he took the right decision to remove Sharon Shoesmith from her post – he had no choice. Third – and perhaps most important of all – the judges have taken the wrong view and misunderstood the intention of Parliament in giving Ministers the powers Ed Balls rightly used.
I remember the frenzy in those few weeks after Baby Peter’s killers finally got justice. The shocking details of what happened to Baby Peter, the repeated chances to prevent his death that were missed, and the fact that this took place in the same borough where Victoria Climbie died all meant that the case would have received huge public attention and revulsion on that day.
And it was magnified by David Cameron’s call at Prime Minister’s Questions for the government to “to take over this failing department and put someone in charge who can run it properly for our children.”
It wasn’t just the tabloids or the petition from The Sun. People across the country were deeply distressed. MPs’ postbags bulged. And BBC, ITV and Sky interviewers demanded repeatedly that action must be taken and heads must roll.
But far from acting in a knee-jerk way, Ed Balls spent three weeks resisting the political and media pressure to act precipitately and for heads to roll. Instead of removing Sharon Shoesmith straight away – even though Parliament had given him the power to do exactly that – he commissioned an independent inquiry from Ofsted, the Healthcare Commission and the Chief Inspector of Constabulary – which talked to Sharon Shoesmith and others – and waited weeks for findings. If that was knee jerk, it was in super slow motion.
When it arrived the report was so devastating that the leader and cabinet member for children’s services at Haringey Council immediately felt the need to resign. The report concluded that “the leadership and management of safeguarding by the local authority and partner agencies are inadequate” and listed a catalogue of failings in the borough.
Faced with such a report, the Secretary of State had to act decisively. Anyone who doubts for a moment the decision Ed Balls took should look again at that report and its implications for the leadership of child protection in that borough.
It was abundantly clear that to achieve the urgent improvements necessary in Haringey, new and strong leadership was needed. Not only did Ed Balls have the power to act, he had a duty to act in the interests of vulnerable children to change leadership as fast as possible.
What would have been irresponsible is if Ed Balls, as the Children’s Secretary at the time, did not immediately act to remove Sharon Shoesmith from her post – on the basis of the objective evidence and conclusions presented to him – to protect children in the borough of Haringey and restore confidence more widely around the country.
His power in the Education Act which Parliament intended ministers to exercise was to direct the removal and replacement of a new Director of Children’s Services. This was a decision which the High Court last year found to have been fair and reasonable.
That is why I disagree so strongly with the Appeal Court judges who pronounced on Friday with an opposite judgement to the High Court. The Appeal Court has concluded that Ed Balls’ decision was unlawful because Sharon Shoesmith didn’t get enough of a hearing, or should have had the chance to speak to the Secretary of State before the decision was made.
The Appeal Court has now said that Ed Balls should have had a personal meeting with Sharon Shoesmith – after he received the report from the independent inspectors before making his decision. That is not the process which the law set out or what his Department’s lawyers and experts advised at the time. Nor does it make any sense.
For a start any such meeting or representation could have made no material difference to the decision Ed Balls took. Ofsted had already completed its independent report. In compiling it they talked to Sharon Shoesmith. Their conclusions made a change in leadership essential. Wider public confidence and the facts of the Baby Peter case made that change urgent.
For the Secretary of State this was not about the employment status of Sharon Shoesmith – that was a matter for Haringey Council – but about her statutory position as the Director of Children’s Services. The Director of Children’s Services and the Cabinet Member for Children’s Services were, under the reforms in the 2004 Children’s Act after the Climbié case, the people paid to be legally responsible and accountable in each local authority for children’s services. In law, the buck stopped with them.
Parliament’s intention was for Ministers to be able to act in the interests of children, to ensure the quality of children’s services, and to make sure poor leadership doesn’t fail child protection. That is what he did.
This is a crucial point – the Secretary of State is not acting as employer or working through employment law processes. That was a matter for Haringey Council. Having taken a reasoned and reasonable view of an independent report, the Secretary of State must make a decision in the interests of children in Haringey. His focus should not be a repeated round of evidence sessions focused on the views and employment prospects of the Director of Children’s services.
Of course, Ministers are not above the law, and of course decisions are right to be subject to judicial review to ensure they are reasonable. But in this case I believe the judges have got it wrong. This decision was not just reasonable, it was right. And the procedures were reasonable in the interests of children and confidence in child protection too.
This is a decision of such importance, taken on the basis of a damming independent report by a Minister of the Crown in accordance with Parliament’s wishes, and the idea judges would rule it unlawful on the basis of their view of perfect procedure is to overstep the mark.
That is why I believe David Cameron and the new government are right in wanting to take this to the Supreme Court. No fan of the shadow chancellor, you can bet he would have taken any political opportunity to put him under pressure. Yet the Prime Minister knows what Parliament knows too – Ministers have to be able to take executive decisions where leadership fails in the public interest.
Ed Balls did the right thing in removing Sharon Shoesmith from her post – resisting the frenzy, but acting decisively on the basis of objective evidence and all the best legal advice. It was a difficult decision – but one I know very well he most certainly didn’t take lightly.
This case started with the tragic death of a small boy. It is because society has an obligation to do everything it can to keep children safe that Parliament, the public and the courts should be supporting Ed Balls’ decision.
Kevin Brennan is Labour MP for Cardiff West and former Minister for Children