A & S v. Lancashire County Council  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 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)
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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