DNA papers for the 6 November 2019 hearing
and
Chasing up the DNA papers
20. For Mr I’s court case, he needed DNA testing to establish if he was the father of one of the children subject to the case, before overnight stays could commence. On 2 August 2019, the court ordered a third party, Cafcass, to undertake the testing. The DNA results should have been submitted to the court two weeks prior to, what should have been, the final hearing on 6 November 2019.
21. Mr I says the court legal adviser failed to issue the relevant form (BD1) within a suitable time frame and when they did, they failed to include the necessary information (correct wording). DNA testing could not be carried out in time. He says he, his solicitor, and Cafcass chased this up with the legal adviser many times over a three-month period, without any response.
22. Our Principles of Good Administration, getting it right, say; ‘Public bodies must act in accordance with recognised quality standards, established good practice or both… Public bodies should provide effective services…’
23. Under ‘being customer focussed’ our principles say, ‘Public bodies should provide services that are easily accessible to their customers… should behave helpfully, dealing with people promptly… should communicate effectively…’
24. Looking at the court order from 2 August 2019, it says, ‘7. (a) the court officer must complete Parts I and II of the standard form BD1 and send this to Cafcass …’ Cafcass is the organisation that was facilitating Mr I’s court case regarding contact with his children.
25. We can already see the DNA testing was not complete in time for the 6 November 2019 hearing. The court order for this hearing says, ‘5. The court needs a report to find out whether [Mr I] is the father of… a test is considered necessary to resolve the proceedings…’
26. We asked Mr I if he had any records of the attempts he made chasing the DNA papers, but he said due to the passage of time his online telephone statements do not go back far enough. He said his solicitor at the time left, so he could not check their records. However, HMCTS provided some information to us that shows Cafcass sent back the forms on 3 September 2019 because they were not correct.
27. Cafcass again chased up the paperwork on 18 and 24 October 2019. On balance, it is likely Mr I and his solicitor were also chasing up this document for the hearing on 6 November 2019, as he would have been keen for the matter to be resolved.
28. Despite there being three months from the court ordering the DNA test, it was not complete in time for the 6 November 2019 hearing because HMCTS did not complete the relevant paperwork. HMCTS acknowledges it made a mistake with the BD1 form. This clearly is not in line with our principles because it has not provided an effective service.
29. We have not seen that HMCTS has done enough to put this right, but we will discuss the overall remedy HMCTS offered later in this report.
Delayed complaint handling from October 2019
and
The complaint escalation process
30. Mr I complained on 28 October 2019 about the delays in DNA testing ahead of the 6 November 2019 hearing. He says he did not get a response for several months and HMCTS did not explain how to escalate his complaint. He also says HMCTS did not do a reasonable investigation into his concerns when it did finally look at his complaint because it seemed to go off a word-of-mouth explanation between the office manager and the court’s legal adviser.
31. Our Principles of Good Complaint Handling, being customer focussed, say public bodies should ‘Deal with complaints promptly, avoiding unnecessary delay, and in line with published service standards where appropriate.’
32. HMCTS’s published complaint procedure says when someone complains they should normally receive a reply within 10 working days. The complainant can ask for a review and details of how to do that would be in the initial response. A review response should then be provided within another 10 working days after that.
33. Next, the complainant can ask for a further review if they remain unhappy, which HMCTS aims to provide within 15 working days. The complainant can then ask their MP to refer their complaint to us as the final stage.
34. HMCTS did not reply until 21 February 2020. At this point, HMCTS apologised for the delay, admitting that it was unacceptable. It explained that it had raised the matter with the legal adviser who apologised for the mistakes and delays with the DNA testing and responding to previous complaints.
35. HMCTS said that, by the time the 6 November 2019 hearing took place, the need for DNA testing had been removed and the court was able to make an order for Mr I to spend time with his children. This does not appear to be accurate because the court order of the same date says it went ahead due to the parties agreeing to do so, despite no DNA testing being provided. Mr I’s contact with his children was also decreased from weekly to fortnightly, with contact arrangements over Christmas, Easter, half-terms, summer holidays, and abroad, still to be determined.
36. There was nothing in the response to advise Mr I how to escalate his complaint. He was still in contact with HMCTS about this and chased for further responses because he remained unhappy. Initially HMCTS offered an ex-gratia payment of £150. On 4 June 2020, HMCTS advised Mr I how to escalate his complaint for a review, explaining the reasons why he is still unhappy with the response and with the initial offer of £150. Mr I did this and on 24 June 2020, HMCTS sent its final response to him.
37. Looking at how HMCTS managed this complaint, it is clear it was not in line with its own published service standards, nor our principles. It is good to see that HMCTS acknowledged its mistakes and attempted to put right its poor complaint handling by apologising and offering an ex-gratia payment of £300 to Mr I.
38. The £300 payment HMCTS offered, on 24 June 2020, seems to be in recognition of not only poor complaint handling, but the other issues we have dealt with above. For the specific injustice caused to Mr I by the maladministration of poor complaint handling, we are satisfied an apology, and £300 ex-gratia payment is enough to put that right. This is in line with our severity of injustice scale.
Disclosure of personal data
39. Mr I says on 22 October 2020, the court ordered another DNA test. Once the BD1 forms were complete, they should be sent to the solicitors of both parties (Mr I and his ex-partner). Mr I says this should have been completed by 26 November 2020, for the next hearing, but HMCTS sent the forms to Cafcass by mistake. This was a disclosure of his personal data. He says the mistake caused further delays and increased costs. We have looked at this court order.
40. Our Principles of Good Administration, being open and accountable, say ‘Public bodies should handle and process information properly and appropriately in line with the law. So, while their policies and procedures should be transparent, public bodies should, as the law requires, also respect the privacy of personal and confidential information.’
41. We asked Mr I what data he thinks was disclosed that Cafcass would not already have. He said Cafcass had nothing to do with this DNA request so all the information on the form would have been disclosed. He says it was personal data about him and his daughter but he did not know specifically what information was in the BD1 forms that Cafcass would not already have. He expressed concerns that it was a new Cafcass officer who did not need to see the BD1 forms.
42. HMCTS acknowledges it sent the forms to Cafcass in error. Admin staff did not review the forms in line with the court order and sent them to Cafcass because it is the usual provider for the test. However, this time the judge ordered them to go to the solicitors, and this is the information admin staff missed.
43. HMCTS’s final response on 25 January 2021 says the DNA tests should have been done by 26 November 2020, and a report sent to the court and Cafcass by 18 December 2020. It sent the forms to Cafcass on 17 November 2020, which told HMCTS this was a mistake. Mr I’s solicitors chased the forms several times before it replied. HMCTS then sent the forms to the solicitors on 3 December 2020.
44. The next hearing was listed for mid-January 2021. If HMCTS had sent the forms to the solicitors, as it should have done, it acknowledges the tests could have been done sooner and a hearing may have been listed earlier too.
45. HMCTS says it reported the data breach in line with its disclosure policy, but that Cafcass would already have the information contained in the BD1 forms because it has been involved in Mr I’s case. It says the impact of the disclosure was low. It apologised for the delay, Mr I’s distress, and inconvenience. HMCTS also offered an ex-gratia payment of £250.
46. We have not seen the BD1 forms but, on balance, it is likely Cafcass would have had the personal data of Mr I and his daughter already because it was involved in the court case itself. However, HMCTS admin staff did not properly review the information in the court order and did not process it properly. This is not in line with our principles.
47. For the injustice caused by the specific mistake of sending papers to the wrong place, taking account that Cafcass would likely already have the personal data contained within, we are satisfied an apology and financial payment of £250 is enough to put this right. This too is in line with our severity of injustice scale.
Delay to the final hearing on 21 February 2021
48. Mr I says Cafcass could not send an officer to court for, what should have been, the final hearing of the case on 25 February 2021. He says Cafcass informed the court of this on 22 February, and the court admin team sent a copy of the notification to his solicitor and the other party to the case, but not the judge. Mr I says as a result the hearing was still listed but when people attended, the hearing had to be adjourned due to non-attendance of the Cafcass officer. He says this in turn led to further delay and costs.
49. Looking again at our Principles of Good Administration, being open and accountable, public bodies should provide people with information that is accurate, complete, and timely, as well as processing it properly.
50. The court order for 25 February 2021 states, ‘… the attendance to give evidence of either [Cafcass officer] or the supervisor who approved her addendum section 7 report will be sufficient for the hearing to proceed on the next occasion.’
51. Under ‘Adjournment of this hearing’ the order also says, ‘It is directed that either [Cafcass officer], the author of the section 7 report, or the supervisor responsible for approving the report, must attend the next hearing in order to give evidence.’
52. We can see the judge was expecting to hear evidence from the Cafcass officer on 25 February 2021, but because she was not available the judge had to adjourn and order their attendance at the next hearing on 4 March 2021.
53. HMCTS acknowledged its mistake and said had it told the judge as soon as possible, they could have directed to either relist the hearing, or for another Cafcass officer to attend. It says due to its mistake the hearing went ahead but had to be adjourned. HMCTS apologised to Mr I and offered to pay half his additional costs (£1550) for the next hearing. HMCTS said this is because it was re-listed within a week so the barrister’s work would have carried over to the next hearing date.
54. Clearly, we can see HMCTS did not act in line with our principles here and as a result Mr I suffered further delay to his case, additional costs, stress, and inconvenience. We have not seen HMCTS has done enough to put his right.
HMCTS’s remedy to Mr I’ complaints
55. Our Principles for Remedy, getting it right, say where maladministration or poor service has occurred, the public body should take steps to provide an appropriate and proportionate remedy. Ideally, they should return complainants to the position they would have been in without the maladministration or poor service, and if they cannot, the public body should compensate them appropriately.
56. Mr I says the maladministration caused by HMCTS delayed his court case by 16 months, caused him and his children significant distress. He also suffered stress, anxiety, inconvenience, and considerable extra financial costs.
57. In many cases, our approach is to look at the impact of each claimed injustice, if there is any, and consider what has been done, or what we can recommend the organisation do, to put things right.
58. In this specific case the best approach here is to look at the overall injustice caused by the maladministration we have found. This is because we need to consider if the initial mistakes with the DNA testing, ahead of the 6 November 2019 final hearing, had not occurred, would the case likely have been delayed and would the subsequent mistakes still likely have happened too.
59. We know the 6 November 2019 hearing was intended to be the final hearing of the case. The court order for this hearing says, ‘a test is considered necessary to resolve the proceedings…’ The hearing was delayed until 17 December 2019 and Mr I’s contact with his children was reduced due to his paternity to one child still being in question. Mr I appealed this decision, which was heard and allowed on 5 August 2020. This also discharged the previous decision of 17 December 2019.
60. We can see therefore the final hearing had already been delayed by nine months, partly because of the lack of DNA testing that should have been in place.
61. After the appeal hearing, the final hearing for the case was listed for 25 February 2021. However, the Cafcass officer could not attend and HMCTS failed to notify the judge. This meant the hearing was adjourned again at the last minute to 4 March 2021, because the Cafcass officer needed to be present to give evidence. However, by then Mr I’s ex-partner no longer contested his paternity to one of his children.
62. On 4 March 2021, the final hearing went ahead successfully. The result of this is that Mr I’s contact with his children was increased, and also included overnight contact. It also established contact during summer holidays, half-term breaks, Christmas, and Easter. We note these were outstanding issues from 6 November 2019.
63. We are neither considering, nor commenting, on the judges’ decisions during the various hearings because it is not in our remit to do so. However, taking all the above into consideration, on the balance of probability, the court case would have been finalised on 6 November 2019.
64. It appears most likely there would have been no need for the case to have been delayed from 6 November 2019 onwards, nor for Mr I to have the need to appeal. Had Mr I’s paternity of his child been proven on 6 November 2019, on balance, the full contact arrangements would have been in place, as described in the 4 March 2021 final hearing order.
65. As such, we find the maladministration we have seen to directly link to the claimed impact Mr I describes in his complaint. This is to say, significant distress, inconvenience, and anxiety to both him and his children, and increased legal costs.
66. Mr I is concerned his children may experience an ongoing emotional impact because of the lengthy court case. While we can say Mr I’s court case continued far longer than necessary, due to maladministration at HMCTS, we cannot say these delays could directly lead to any ongoing impact his children may experience.
67. In a situation such as this, where Mr I’s children experience the difficulties and emotional impact of their parents separating, we can understand they would be extremely distressed, and we acknowledge their contact with their father was initially decreased. However, we hope now the court case is concluded, his children are managing things well.
68. We are pleased to see and acknowledge HMCTS has made some efforts to put right the injustice by way of acknowledging mistakes, apologising, and offering some financial remedy. We do not consider this goes far enough.