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Shoesmith, Ofsted and the Obligation of Candour

April 27, 2010

Mr Justice Foskit in the High Court has dismissed Sharon Shoesmith’s application for Judicial Review of the decisions by Ed Balls, Ofsted and Haringey Council. In handing down his judgement the Judge made some remarks including this:-

“The judgment makes it very clear that there is a very narrow focus to the issues that I am required to consider. That focus relates to a review of the fairness or otherwise of the procedures adopted by Ofsted, the Secretary of State and Haringey – the focus is not on the merits of the decisions made, nor upon whether the Ofsted inspectors were correct in their assessment of Haringey at the time, nor on whether the final form of the report was unfairly strengthened during the report writing stage.”

Immediately after hearing the Judge’s decision and despite the Judge having made very clear his “narrow focus” Christine Gilbert, the head of Ofsted (and spouse of Tony Mcnulty MP), rushed out this announcement to the waiting press and through them to you, me and the public in general:-

“You will appreciate that we have only just received the judgement and we need to study it in detail but I am pleased that the Judge’s conclusion is clear: Ofsted’s inspection process has been vindicated. Ofsted takes its role in inspecting the protection arrangements for vulnerable children very seriously. I am pleased, therefore, that the Judge has found in our favour in this judicial review. We carried out a robust inspection, came to a sound conclusion based on the evidence and acted fairly. The inspection team did a professional and rigorous job and we are pleased that they have been vindicated through the intense scrutiny of the court process.The  case never challenged Ofsted’s inspection judgement that child protection services in Haringey in November 2008 were inadequate and children who were ‘at risk’ were not being protected securely enough. We believe that the inspection report at the centre of this case, and our two follow up inspections, have made a substantial contribution to improving the protection of vulnerable children in Haringey. I hope today’s judgement gives the public reassurance. Ofsted inspectors will continue to report without fear or favour wherever they identify that arrangements for protecting vulnerable children are not good enough.”

That press statement does not seem to me to square with Mr Justice Foskit’s remark about his “narrow focus” which specifically excluded scrutiny of “..whether the Ofsted inspectors were correct in their assessment of Haringey at the time..”. Nor would Ms Gilbert’s self-congratulatory press release seem in line with following passage also from the Judge’s remarks:-

The recent background in the case has been the late disclosure of material by Ofsted. It has caused me (and would have caused any judge who sits in the Administrative Court) very considerable concern. Judges who sit in that court depend upon public bodies to comply with what, in legal circles, is called the obligation of candour. The court, which has a huge workload, would rapidly grind to a halt if this obligation was not complied with properly on a regular basis. Ofsted undoubtedly failed in this regard initially. However, they have endeavoured to put it right and, as I said at the time the whole issue arose, they and their legal team behaved perfectly properly and correctly by bringing the matter to my attention. For the reasons I have given in Appendix 2 to the judgment, I am still not happy that I have received a full explanation for the initial failings and I indicate that I am proposing to take the matter up personally with the Treasury Solicitor. However, I have to proceed on the basis the obligation has now been complied with and, unless there is still something undisclosed, my appraisal of the documents and the evidence now available is that the Claimant has not been disadvantaged by any breach of the obligation of candour by Ofsted.

It seems to me that a public body such as Ofsted, operating in a democracy and with independence as a fundamental criteria for gaining public trust, should not engage in New Labour style spin. The Judge stated that Ofsted owes a duty of candour to the court, a duty which Ofsted initially failed to meet. I think Ofsted also owe a duty of candour to the public whom they supposedly serve. That being so then less arrogant crowing about “vindication” and rather more modest comments about mistakes made and lessons to be learned would be more appropriate as well as more accurate. But hey, there’s an election coming up.

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