Care system failures breach children’s human rights

A & S v. Lancashire County Council [2012] EWHC 1689 – read judgment 

The poor quality of provision for children in care was much in the headlines last week. A highly critical report by the Deputy Children’s Commissioner, which found children in many privately run care homes were at high risk of suffering violent or sexual abuse, was followed by the Government’s announcement of plans to speed up the adoption process and allow families who wish to adopt children to foster them first.

The problems of the current system and the effect these have on the lives of individual children was also vividly highlighted in a tragic case in which the High Court held that a series of failures by a local authority constituted a breach of two young boys’ rights under Articles 3 (protection from inhuman and degrading treatment), 6 (fair trial rights) and 8 (family and private life rights).

The very distressing story of the boys’ lives to date is set out in considerable detail at paragraphs 18-102 of Mr Justice Jackson (Jackson J)’s judgment. However, the brief facts are as follows. A and S are brothers who were first taken into care in 1998, aged just 3 and 6 months’ old, after their mother abandoned them. The local authority initially placed them with their aunt, but she was a single woman with six children of her own and could not cope.

A ‘freeing order’ was obtained, which severed the boys’ ties with their birth family, but no adoptive family was found. However, instead of revoking the freeing order and seeking some form of renewed contact with their birth family or a permanent care placement, the boys were passed from one foster carer to another over the course of the next 14 years. At least two sets of foster carers were abusive. Eventually, the boys sought the help of legal representatives and brought Human Rights Act proceedings against the local authority and one of its employees – an Independent Reporting Officer (“IRO”), whose role it was to review their case regularly.

The appalling experience of A and S is perhaps shown most starkly in some numbers. There were some 19,000 pages of social work records relating to the two boys, and Jackson J summarised them as follows:

“A has had no fewer than 12 main placements during his lifetime, of which 7 lasted for less than a year and 5 lasted for between a year and 5½ years. During this time, he has been placed in respite care 36 times, with 19 different respite carers. In one 18 month period beginning when he was 10, he went to 8 different respite carers. A has moved backwards and forwards between placements of all kinds no less than 77 times in his 16 years of life.

S has had no fewer than 16 main placements during his lifetime (12 with A and 4 without him). Of these, 10 lasted for less than a year and 6 lasted for between a year and 5½ years. During this time, he has been placed in respite care 40 times, with at least 22 different respite carers. Like A, in one 18 month period beginning when he was 9, he went to 8 different respite carers. Overall, S has moved backwards and forwards between placements of all kinds no less than 96 times in his 14 years of life.

According to a LAC review record, in October 2001, when A was just 6, his understanding of a mother and father was that ‘they change’.

Unsurprisingly, the effect of all this on A and S has been disastrous. Both boys have serious difficulties with intellectual development and communication, forming relationships and regulating their emotions.

The declarations

The local authority (LCC) and IRO agreed to declarations that they acted incompatibly with the ECHR in no fewer than ten ways:

(1) Failed to provide A and S with a proper opportunity of securing a permanent adoptive placement and a settled and secure home life. (Art. 8)

(2) Failed to seek revocation of the orders freeing A and S for adoption, made on the 19 March 2001 pursuant to Section 18(1) Adoption Act 1976, which effectively deprived them of the protection afforded to children under the Children Act 1989; contact with their mother and/or other members of their family; and access to the Court and the procedural protection of a Guardian. (Arts. 6 & 8)

(3) Permitted A and S to be subjected to degrading treatment and physical assault and failed adequately to protect their physical and sexual safety and their psychological health. (Arts. 3 and 8)

(4) Failed to provide accurate information concerning A and S’s legal status to the Independent Reviewing Officers. (Art. 8)

(5) Failed to ensure that there were sufficient procedures in place to give effect to the recommendations of the Looked After Child Reviews. (Art 8.)

(6) Failed to promote the rights of A and S to independent legal advice. (Art. 6)

(7) Specifically, failed to act as the ‘responsible body’ to enable A and S to pursue any potential claims for criminal injuries compensation, tortious liability and/or breach of Human Rights arising from their treatment by their mother, or by the Hs or by Mrs B. (Art. 6)

(8) [The IRO] failed to identify that A and S’s Human Rights had been and were being infringed. (Arts. 6 & 8)

(9) [The IRO] also failed to take effective action to ensure that LCC acted upon the recommendations of Looked After Child Reviews. (Art. 8)

(10) [The IRO] failed to refer the circumstances of A and S to CAFCASS Legal. (Art. 8)

Wider impact

A and S will now seek damages for negligence and breach of statutory duty in a separate civil action. However, their hope is that their human rights claim will draw attention to wider problems in the system. Jackson J identified two in particular.

First, that the legal status of children in care has welfare consequences. ‘Freeing orders’, whereby a child’s membership of his birth family was extinguished and sole parental responsibility transferred to the local authority, essentially made a child a ‘statutory orphan’. As Jackson J explained:

There are … real problems with sole corporate parental responsibility existing for anything other than a short transitional period. Anyone, let alone a child, who relies entirely on professionals to make decisions for him depends on effective systems and professional commitment. Foster carers, employed by the local authority, are responsible for the day to day care of children. They are not well placed to hold local authorities to account, even if, as here, some do. The situation of a child in a children’s home is even more exposed. By their nature, families, even those with major shortcomings, have a persistent quality that carers and social workers may lack. The involvement at some level of family members in the lives of children in public care can act as a stimulus to good practice, if only as a reminder to the state that, having removed the children, it is under an obligation to do better for them than their own family could do.

For this reason, freeing orders were only intended for use where there was a real prospect of a permanent adoptive family being found within 12 months, and were replaced in December 2005 by ‘placement orders’, which do not remove a child’s legal tie to his birth family. Unfortunately, in this case A and S were ‘statutory orphans’ for 11 years, and it seems there are numerous other children in the same position, 6 years after freeing orders were got rid of. Any local authority with any such children under its care would be well-advised to immediately review their cases and act quickly to ensure they have the appropriate legal status that encourages some form of stability and permanence.

Secondly, Jackson J went into considerable detail on the role of IROs, assisted by what was described as a ‘remarkable‘ document produced by Mr H, the IRO in this case. Mr H filed a long statement, in which he apologised profusely to A and S, frankly accepting various shortcomings, but also explained the extraordinary pressure, overwhelming case-load, inadequate training, tick-box culture and non-existent supervision he had to put up with as an IRO which he said caused, although did not justify, his failures. To give but one example from his detailed evidence, the IRO handbook recommended a maximum case-load of 50-70, but during 2006 he had around 200 cases. Jackson J commended Mr H for his courage in speaking up about a role which, given lack of resources, was clearly not fit for purpose. The IRO system was reformed in April 2011. However, it is clear that over-worked, under-supported social work professionals like Mr H need significantly more training and resources to make the review processes effective, and it is not clear whether the changes have achieved this.

Finally, this judgment adds further urgency to the Government’s plans to streamline the adoption procedure. Children need a loving, stable family. Anything that can be done to ensure that those who cannot stay with their birth family get a new, permanent, home as soon as possible would be an improvement over the current system, where children like A and S can be moved from placement to placement for years, suffering terribly in the process.

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6 thoughts on “Care system failures breach children’s human rights

  1. Very sad. Those kids may well be irreparably damaged. Monsters are seldom born; more often they are produced by neglect, abuse and deprivation in childhood.

    Their future may consist of a revolving door in an out of gaol, as has been the fate of so many kids from care. Their lives may well turn out to be nasty, brutish and short.

    The only way the State has available to deal with them in adulthood will be through the criminal justice and / or mental health systems. It is hard to see how monetary compensation can replace that which a stable loving home could have given them.

    • A good point, Stephen. The State makes a poor substitute for parents, even when it does a good job, and it doesn’t seem to be doing a good job at the moment in far too many cases. A terrifyingly high percentage of children in care end up in the criminal justice system. You’re also right that money won’t solve anything for these two boys, although it’s the best the courts can offer. However, there is some hope for A and S, thankfully. Jackson J made the following important comment about them (at [103]-[105]):

      “After such a catalogue of difficulties, it is important that the boys are valued for who they are. A, whom I had the pleasure of meeting at an earlier hearing, attends college. He is good with his hands and takes pride in his skill at fixing cars and in helping with building work (which began when the SGs insisting on him helping builders who had come to repair damage that he himself had caused). He is a member of a scouting organisation and enjoys family holidays. Dr Sturge describes him as a caring, likeable boy who has made good use of the cognitive abilities he has and who has some ability to recognise and think about his feelings. For his part, S is an articulate boy who is liked by staff at his children’s home despite the demands he places on them. It is to their credit that neither boy has been involved in offending outside the home.”

    • What we need is research based on probability of safety and care, the state removes children to “protect” them but if they are being removed from an unproven area with little evidence per se and placed into an environment where they are most certainly going to suffer abuse or worse then we should not be removing them and instead be seeking to place support and help packages in the home.

  2. I think it a sovereign disaster in the making for the current adoption changes.

    For those that maybe are unaware, it is believed in the non social services circle of people that as many as up to 85% of children are taken under bogus or highly exaggerated circumstances. That this figure has been attained for some years now suggests that there is a looming disaster for a sitting government when class actions begin to be launched against the governments and local authorities by children illegally or wrongfully removed from their parents into adoption.

    One correlation of concern is that the rise in adoption figures coincides with the myriad councils losing millions in the Icelandic banking crash and the resultant refusal by the treasury to cover the losses has left many local authorities in dire straights, in fact councils are looking at huge black holes in their Icelandic losses as well as pension mismanagement black holes, it is believed that several councils are more than a billion pounds in debt.

    Where adoption fits into this is the “golden pot” that the government makes available for every adopted child as well as the “golden target” for meeting government set adoption figures which brings into desperate councils much needed, almost critical revenue, it is many a belief that children services directors are ordering their staff to adopt whenever possible regardless of the childs actual needs or situation to bring in this money.

    David Cameron is streamlining this process, many more innocent children will be ripped from their families, based on what? one, two or three short sessions by a social worker with the family, relying on hearsay and opinion, cases devoid of any factual evidence, parents factual evidence being ruled as unworthy and a social workers opinion taken for the future option.

    We are doing again to our children what we did with them to the forced adoptions in the colonies, stolen and taken on the slightest premise, sold to the highest bidder, in short HM Government and local authorities, with the BAAF, CAFCASS and other agencies are dealing in child exploitation and trafficking.

    The family courts themselves are illegal under international law, Britain signed the first UN treaty guaranteeing adult and child free, fair and open justice, the family courts are a breach of the treaty with Europe, the treaty with the UN guaranteeing their rights, that many organisations including Anthony Douglas who sweeps a huge bonus every year as a director of the BAAF AND CAFCASS are making exceptional profits off of these children for their own benefit, Douglas wearing his CAFCASS head steers his Guardians and other workers towards adoption, the BAAF as principle agency earns a fortune as does Douglas.

    Yet it seems that a bad situation cannot get worse but it has, the government has given Coram a great amount of power in the adoptions system yet this is the same Coram that stole those children to sell to Australian ranchers and New Zealand or African factory owners.

    If people do care about human rights and do care that Britain has an abysmal track record with its children, then please consider helping those out there take this to the UN, the EU, help them fight the theft of their children, I suffered 17 years of harsh and brutal treatment by various social workers and the courts system, they were trying to steal my daughter, they failed there but they succeeded in stealing my grandsons and given to someone who I can prove abused the eldest one.

    Spare a thought for the parents, social workers ignore the real cases and seek soft targets, its all about money, many of them are tied up in the foster carers limited companies, sending children to certain foster homes in return for a undisclosed payment every month, our children are being exploited and Cameron has just given them the jackpot.

  3. Murderers and rapists in prison can phone out and receive visitors without being censored.Children in care can do neither.Their mobile phones are confiscated and no phone calls are allowed to relatives and friends.Even their laptops are taken away. If their parents are permitted contact they are not allowed to discuss their cases or complain about the conditions they live in otherwise contact will be stopped immediately.
    If the children referred to above had been free to complain to relatives or to the media their suffering might well have been prevented but alas children in care who have done nothing wrong are treated worse than the worst criminals.No wonder every child coming out of care detests social workers !

  4. This case highlights that Independent Reviewing Officers need to be removed from local authority control. It’s like the banks saying they’ll employ a reviewing officer to oversee ethical practice, but that reviewing officer is paid, hired and fired by the bank. This case highlights the need for IROs to be able to effectively challenge local authority decisions without fear of job loss/loss of promotion prospects/difficulty at work. Independence and professionalisation of IROs could lead them to have fewer cases which they can review more effectively.

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