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Local Authority unlawfully caring for child for four years (section 20 abuse)

 

Herefordshire Council v AB 2018

http://www.bailii.org/ew/cases/EWFC/HCJ/2018/10.html

 

This is the case referred to in my earlier blog posts, and in this news story in the Guardian

https://www.theguardian.com/society/2018/mar/16/council-kept-boy-9-in-care-for-whole-of-his-life-judge-reveals?CMP=share_btn_link

 

The Guardian piece is not overselling it.

 

  This judgment concerns two unconnected young people who have been accommodated pursuant to the provisions of The Children Act 1989, section 20 (the 1989 Act) for a very considerable period of time.  Their treatment by Herefordshire Council (‘the local authority’) represents two of the most egregious abuses of section 20 accommodation it has yet been my misfortune to encounter as a judge.

May as well open with the key bit

 

In the case of one of the 42 children accommodated by the local authority referred to above, the mother withdrew her consent for her child to be accommodated in 2013.  The local authority not only did not return the child to her mother’s care, it effectively did nothing in terms of care planning for the child.  Thus, for four years the local authority unlawfully had care of this child. 

 

That wasn’t the only example.

 

On 28 March 2010 CD’s mother gave formal written notice to the council of the withdrawal of her consent to CD being accommodated.  In response, the local authority (1) did not return CD to her care, but (2) advised her to seek legal advice if she wished CD to be returned to her care.  The director has acknowledged that this was a misuse of the local authority’s powers and it should have made immediate arrangements to return CD to his mother’s care.  It is, however, far worse than being a misuse of powers.  The local authority acted unlawfully and unlawfully retained care of CD until at least February 2013 when it appears from the chronology that the mother was engaging with the local authority and agreeing to CD remaining in care. 

 

The Judge, Keehan J, made orders that the Director of Children’s Services file statements explaining what had gone wrong with these two children and to set out all of the children that were in section 20 accommodation with details.

 

  1. I required the Director of Children’s Services to file and serve (i) a statement explaining the events and lack of planning in respect of CD and GH, and (ii) a statement detailing the circumstances of each and every child accommodated by this local authority pursuant to the provisions of section 20.
  2. The latter document made very grim reading.  Excepting CD, GH and three other children who are now the subject of public law proceedings, the local authority is accommodating 42 children.  Of these 42 children, the local authority have now recognised that 14 have wrongly and abusively been the subject of section 20 accommodation for a wholly inappropriate lengthy period of time and/or should have been the subject of legal planning meetings and/or care proceedings at a much earlier time.

 

My mathematical skills are not perfect, but that’s about a third of the children that they were accommodating that were being wrongly and abusively accommodated.

 

Gulp.

 

  1. Mr Chris Baird was appointed the permanent Director for Children’s Wellbeing for this local authority (otherwise known as the Director of Children’s Services and hereafter referred to the as ‘the Director’) on 10 November 2017.  It is right that I record at an early stage in the judgment that he (a) has readily and timeously complied with all directions made by this court for the filing and serving of statements and letters (b) has been completely frank and open about the past failings of this local authority (c) has provided a ready explanation of the steps he has taken or will take to remedy past mistakes, and (d) has chosen to attend court hearings in person.
  2. Later in this judgment, I will be roundly critical of egregious failings of this local authority in relation to CD and GH but also in relation to the 14 children to whom I have referred above.  Nevertheless, it is important for me to recognise and acknowledge that Mr Baird and the new senior management team at this local authority have taken and will take steps to ensure that such dreadful failures in the care of and planning for children and young people in its care will not occur in the future.  I have every confidence in the sincerity and commitment of this director to improve very significantly the planning for and provision of services to the children and young people for whom it is responsible.

 

 

Very decent of Mr Baird not to throw his predecessor under the bus.

 

(I also note with pleasure the use of the word ‘timeously’ which I was naming to a friend as one of my favourite words just last week)

 

  1. In February 2017, I sent a letter to the Director of Children’s Services of each of the 22 local authorities on the Midlands circuit with the consent and approval of all of the circuits’ designated family judges and of the chairs of the circuits’ ten local family justice boards.  One of the principal topics addressed was the use of section 20 accommodation.  I offered the following guidance:

“The use of section 20 by a local authority to provide accommodation to children and young people is perfectly legitimate if deployed in appropriate circumstances.  It is a useful tool available to local authorities.  I offer the following as examples of the appropriate use of section 20 but I emphasise these are examples only and not an exhaustive list: (a) a young person where his or her parents have requested their child’s accommodation because of behavioural problems and where the parents and social care are working co-operatively together to resolve the issues and to secure a return home in early course; (b) children or young people where the parent or parents have suffered an unexpected domestic crisis and require support from social care to accommodate the children or young people for a short period of time; (c) an unaccompanied asylum-seeking child or young person requires accommodation in circumstances where there are no grounds to believe the threshold criteria of section 31 of the Children Act 1989 are satisfied; (d) the children or young people who suffer from a medical condition or disability and the parent or parents seek respite care for a short period of time; or (e) a shared care arrangement between the family and local authority where the threshold of section 31 care is not met yet, where supported, this intensive level is needed periodically throughout a childhood or part of a childhood. 

“In all of the foregoing, it is likely the threshold criteria of section 31 of the Children Act 1989 are not or will not be satisfied and/or it would be either disproportionate or unnecessary to issue public law proceedings.  It is wholly inappropriate and an abuse of section 20 to accommodate children or young people as an alternative to the issue of public law proceedings or to provide accommodation and to delay the issue of public law proceedings.  Where children and young people who are believed to be at risk of suffering significant harm are removed from the care of their parent or parents, whether under a police protection and emergency protection order or by consent pursuant to section 20, it is imperative that care proceedings are issued without any delay.”

 

  1. This guidance, which was given by me in my role as the Family Division Liaison Judge of  the Midland Circuit, has neither legal effect nor greater significance than, as was intended to be, helpful advice to the respective directors, their senior staff, their social workers and the local authority’s child care solicitors. 

 

 

We shall see whether the Supreme Court agree with that formulation – they might well do.

 

CD was accommodated on 14th October 2009.

 

On 28 March 2010, the mother wrote to the local authority formally to withdraw her consent to CD remaining accommodated by the local authority pursuant to the provisions of section 20.  The local authority did not act on this withdrawal of consent and, instead, advised the mother to seek legal advice if they wished CD to be returned to their care.  I shall return to this issue later in the judgment. 

 

 

To make it absolutely plain, once mother does that, the LA have to return the child to her care or obtain an order from the Court authorising them not to do so.  They can’t just pretend she didn’t say it.  It is particularly rich to suggest to the mother that she seeks legal advice, when the LA obviously weren’t doing that themselves, or at least weren’t following it.

 

If the LA had asked me at that point what the legal status of the child was, I would have sent them this image

 

And, if you want to make provision for the damages claim that’s about to follow, you may want to locate “Treasure Island”

 

  1. A further LAC review was held on 29 April 2010.  That review recommended that the local authority should take steps to address CD’s legal security and permanence.  A legal planning meeting was held on 4 August 2010.  The legal advice given was to issue care proceedings to gain greater clarity around the parties’ views and timescales to secure permanence for CD as early as possible and for CD to have a voice in the proceedings through his guardian and solicitor.  Nothing was done.
  2. A further LAC review held on 18 November 2010, during which CD’s independent reviewing officer raised concerns about the delay in achieving permanence for CD and reiterated that the legal advice given needed to be followed.  Nothing was done.
  3. Two further legal planning meetings were held on 16 February 2011 and, following the completion of an updated assessment of CD’s needs again, on 30 March 2011, there was agreement at that latter meeting to initiate care proceedings.  At a further LAC review on 6 April 2011, no further recommendations were made as a clear decision had been made on 30 March. 
  4. On 5 May 2011, the decision to initiate care proceedings was retracted by the then Assistant Director of Children’s Services who stated she was not, “agreeing to issuing proceedings and considered that seeking a care order would not make a significant difference to CD’s care given he had been accommodated for some time”. 
  5. This decision was fundamentally misconceived and fundamentally wrong.
  1. The next LAC review was held on 28 February 2013 where it was agreed that CD should remain looked after until his 18th birthday.  There had been a query about his legal status.  The decision was made that he remained accommodated pursuant to section 20, noting that CD’s mother was engaging well with the arrangements.  A further LAC review was held on 16 July 2013.  No changes were recommended to CD’s care plan.  The same approach was taken at the next LAC review on 9 December 2013 but there were discussions about the possibility of CD’s foster carers applying for a special guardianship order. 

 

There are a string of further LAC reviews, all thinking that the section 20 was okay  (basing that presumably on the Feb 2013 view that “Mother was engaging well with the arrangements”), then

 

There was a further LAC review on 3 April 2017.  On 5 September 2017, legal advice was sought at a legal gateway meeting.  It was recognised that CD had been accommodated under section 20 since 2009.  Somewhat surprisingly, the section 20 accommodation arrangement was deemed appropriate.  Thereafter, the decision was made to issue these public law proceedings. 

 

GH was accommodated on 9th July 2008 – the LA relying on the purported consent given by his mother, who was fourteen.

 

  1. At a LAC review held on 4 March 2014, there was a change of plan by the local authority.  The local authority decided to take GH’s case to a legal planning meeting.
  1. It was decided at the legal planning meeting that care proceedings should be instigated. The care plan of the same date stated that the local authority is considering the need to obtain a full care order. Nothing, however, was done

Well, at least they decided after nearly six years to issue care proceedings. Job done.

 

  1. In June 2016 a comprehensive review was undertaken of all section 20 accommodation cases by this local authority.  A LAC review was then held in respect of GH on 8 December 2016 where it was reported that legal advice regarding the continuing use of section 20 had been sought.  The decision was made that (i) an application for a care order needed to be initiated, and (ii) the local authority needed to gain parental responsibility due to GH’s complex health needs and the fact that he might need to move to a new placement in the near future. Nothing was done.

 

Okay, so having decided after six years that they needed to do something, they didn’t do anything for a further two years, then reviewed it and realised that they needed to do something. Then did nothing.

 

A further legal gateway meeting took place in March 2017.  The case was escalated by the independent reviewing officer to the Children with Disabilities Team at regular intervals between May and July 2017.  The independent reviewing officer then raised the matter with the Head of Service for Safeguarding and Review, who in turn escalated it to the relevant Head of Service in July.  It was not until 22 September 2017 that this application for a care order was in fact made. 

 

 

Oh boy.

 

  1. I have never before encountered two cases where a local authority has so seriously and serially failed to address the needs of the children in its care and so seriously misused, indeed abused, the provisions of section 20 of the Children Act 1989.  By happenchance alone, as it appears to me, both children have remained in the care of quite extraordinary and superlative carers who have met their respective needs extremely well.  I offer the warmest of thanks and congratulations to CD’s foster carers and to GH’s foster carer.  For periods of at least eight years they have each cared for the two boys without any parental responsibility for either of them.  Both sets of foster carers have in many ways been failed by this local authority, but their commitment to CD and GH respectively has been undaunted and unfailing. 
  2. Nevertheless, serious and long lasting damage has resulted.  Contact between CD and his mother had never properly been considered nor promoted.  The mother is not without blame on this issue.  It led however to an extremely unfortunate event recently where the mother and CD inadvertently came across each other in public and the mother did not recognise her son.  CD was dramatically affected.  What child could reasonably cope with their mother or father not recognising them?
  3. In respect of GH, his mother was so young when he was born that she needed the greatest possible advice, support and consideration.  She was not given any of the foregoing.  The local authority, as referred to above, did not even consider whether she was capable of consenting to GH’s accommodation.  Thereafter she was frankly side-lined.  As she grew older and matured, little, if any, consideration was given as to whether she could then care for GH or whether she could and should play a greater role in his life.  I have a very real sense that her role as his mother, albeit, or perhaps because, she was so very young, was simply overlooked and ignored.  Fortunately, with the issuing of these proceedings it has been possible to secure the placement of both children.  In respect of CD with his current carers as special guardians.  In respect of GH, to secure his placement with ZA but then to consider where his interests lie in a future long-term placement.  It has also enabled CD’s foster carers to be invested with parental responsibility for him.
  4. I have been seriously critical of the actions and inactions of this local authority.  I do not, despite the explanations offered, understand how or why this local authority failed these two children so very badly.  Nevertheless, I am satisfied that the appointment of a new director and a new management team, who are alive to the past failings in these and in other cases, will lead to an improved service for the children and young people who are now or hence forward will be placed in the care of this local authority.

 

 

The Local Authority argued that they should not be named in this judgment.  Given that the title of the case is Herefordshire Council v AB 2018,  how do you think that application went?

 

Publicity

  1. I have indicated to the parties at earlier hearings that I was minded to give a public judgment in respect of both cases.  It was submitted on behalf of the local authority that I should anonymise the names of all parties, including the local authority, because the adverse publicity would be damaging to the council.  I subsequently received a letter from the director bringing to my attention Hereford’s struggle to recruit solicitors and social workers and that “adverse publicity for the local authority does count in the minds of some prospective employees and it would be unfortunate if our historic failings were to turn people away.”  The contents of this letter, which had been disclosed to all of the other parties, caused me to consider once more whether it was necessary for me to name the local authority in this case.  After long and careful reflection I have concluded that it is.  I decided that a public judgment which named the local authority was necessary for the following reasons: (a) the President has repeatedly emphasised the importance of transparency and openness in the conduct of cases in the Family Division and in the Family Court; (b) the public have a real and legitimate interest in knowing what public bodies do, or, as in these cases, do not do in their name and on their behalf; (c) the failure to plan and take action in both of these cases is extremely serious.  There were repeated flagrant breaches of guidance from the judges of the division and of standard good practice; (d) it is evident that this case emanates from the Midlands Circuit.  Not to identify the relevant local authority would unfairly run the risk of other authorities on this circuit coming under suspicion; and (e) the President and the judges of the division have always previously taken a robust approach on the identification of local authorities, experts and professionals whose approach or working practices are found to be below an acceptable standard. 
  2. The director is understandably concerned about the potential adverse consequences of a public judgment.  I fully understand those concerns, but, for the reasons I have given above, I do not consider these concerns should lead me to anonymise the local authority.  In my view these concerns are addressed, or at least ameliorated, by the court making it clear, as I do in paragraphs 11 and 12 above and in the paragraphs below, that the criticisms set out in this judgment relate to the past actions of this local authority and that there is now a new director and leadership team in place who are committed to change and to improve the care and provision of services to the children and young people in its care.

 

To be fair, even as someone who practised law for ten years in the Midlands, I had no idea that Hereford was considered to be in the Midlands circuit, so it wouldn’t have been on my suspect list had the Court just said “a Local Authority in the Midlands”

Geography is not my strong suit.  I have yet to establish what my strong suit is, other than snark.

 

Hereford will now be waiting to see what the Supreme Court decide in Hackney about human rights claims arising from section 20 misuse.  These are very bad ones.  If HRA claims are still going after Hackney, expect this to break all records.

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

28 responses

  1. If this wasn’t so sad, I would be laughing hysterically at the total ineptitude, of bungling, (or corrupt) #SillySocialistas that purport to have a clue about the kid they take with almost unfettered impunity.
    .
    What a bunch of idiots. Words almost fail me at the staggering (and frightening) imbecility of these so called professionals who give evidence against parents.

    For goodness sake sort yourselves out or ship out.

    • ashamedtobebritish

      I’m laughing! But only at the desperate pleas of the local authority not to be named – the arrogance is expected, but nonetheless shocking.
      Still it opens some magnificent flood gates, if which I am sure, we will both be faced with, as in the past

  2. And yet ironically one of the most frequently ranted about topics on anti ss groups is “my kids under section 20 iv demanded my child back and their refusing to do it”

    Aye Hereford and Hackney may be in the spot light but their far from the only LA to regularly abuse section 20 and refuse to hand the child back

    I’m still awaiting a decent case about LAC reviews and refusal to invite involve or update parents about what’s happening with kids they hold PR on ….

    Stella xx

    • Pop the link up to the case then Stella. The advantage of these sad law reports is that they do make it clear that behaviour like that is wrong and has consequences. Hit the LA with the law

      • ashamedtobebritish

        She can’t – gagging orders have seen to that

      • No, I meant link the Herefordshire case up on those forums. Am absolutely not encouraging Stella to break the law, Heaven forbid.

      • Like I ever need any encouragement 😂😂 !

        Anyway I never break the law merely find a loophole to do what I want 😉

        I’m currently banned off Facebook for the forcible future 😞 but will do once I’m uncensored again x

      • ashamedtobebritish

        Worry not, she’ll break the law in a heartbeat, but not when it’s to the detriment of a parent/child.
        The case is all over the various support networks already, now to sit and explain what it means (and what it doesn’t, which is rather more challenging)

      • Since when do I not subvert gagging orders Bahahaha!

        Hoping there will be one out shortly involving a LA that failed to even allow the mother to know the current social workers name for 5 years and refused to share LAC info or even invite or seek mothers views for the LAC reviews despite numerous requests for 6 years but given previous judicial bias I won’t be holding my breath ….

        Hit the LA with the law I could hit DCC with the entire bloody RCJ court building and they still wouldn’t adhere to the law 🤬 x

  3. I’ve been censored………………….,?

  4. Yes Sir James Munby is doing his best but sadly to no avail ……….In practice social workers tell hapless mums (and dads ) Sign this section 20 or we go to court and you will lose your children for good.Many parents sign without reading it ,some under the impression that it is to allow social workers to take the children to the doctor’s if need be !
    Those that refuse to sign are often faced with aggressive uniformed police who have been persuaded by social workers that the children’s lives are in danger so they take them Under “police protection for4 or 5 days;
    There then follows a rapid court hearing where parents are represented by solicitors kindly recommended by social services from a list of suitable types ! In court these lawyers assure parents “we will speak for you” and sometimes suggest that the mum should wait outside as it might upset her hearing court proceedings.In any event they agree the interim care order and the children are fostered (some with a view to being” forced adopted”;)
    By then as Lord Justice Thorpe said” There is nothing more serious than a removal hearing, because the parents are so prejudiced in proceedings thereafter.”

  5. https://researchingreform.net/2018/03/19/more-councils-using-section-20-arrangements-to-keep-children-in-care-illegally/

    The Judge, Keehan J, made orders that the Director of Children’s Services file statements explaining what had gone wrong with these two children and to set out all of the children that were in section 20 accommodation with details.

    I required the Director of Children’s Services to file and serve (i) a statement explaining the events and lack of planning in respect of CD and GH, and (ii) a statement detailing the circumstances of each and every child accommodated by this local authority pursuant to the provisions of section 20.
    The latter document made very grim reading. Excepting CD, GH and three other children who are now the subject of public law proceedings, the local authority is accommodating 42 children. Of these 42 children, the local authority have now recognised that 14 have wrongly and abusively been the subject of section 20 accommodation for a wholly inappropriate lengthy period of time and/or should have been the subject of legal planning meetings and/or care proceedings at a much earlier time.

    My mathematical skills are not perfect, but that’s about a third of the children that they were accommodating that were being wrongly and abusively accommodated.

    Not forgetting not all parents sign the s 20 and whether they do or not, it would be interesting to know how many other parents went down the correct channels to state they wished to have their child/ren back home where the s 20 got abused and over many years.

    Will the statistics be sought now from every Council to find out where/if similar has happened, because this has taken some years to come to light with this particular case?

    Thank you x

    • It certainly would be a good idea to have some sort of independent report into misuse of section 20, even if it just starts with a twitter poll . I agree with the naming of Councils who are misusing it . I will start with East Riding of Yorkshire Council , who took my son under section 20 without actually asking me at all. Post Grenfall it is about time that all of a councils residents were treated with common decency, including those who are disavantaged

      • I am liking your twitter poll idea if the poll is directed to all Councils in England, Ireland, Scotland and Wales because to name the Council responsible is difficult for some parents to do (as not all parents lose all their children to forced (alleged) adoption with a capital A for alleged (hence do they get referred to as parent or natural parent?) but it would be difficult for parents to ‘all’ be able to name the Council responsible due to restriction/gagging orders even though their is caselaw around it, i also recall reading Judge McFarlane was proposing research be done; has any more happened about that recently? Is it something Andrew (as in suespiciousminds) or Natasha from Researching Forum could consider starting up re a poll? It could be called ‘You will just feel a little pin prick but it will only hurt a little bit’ to replica all the families who get treated the same who are told to just go along with it, all will be fine and of course often is the case it isn’t fine for so many. Then once it’s done, i envisage a sticky plaster to help heal the wounds a little (more than the parents and their family’s affected are given) with the title ‘There, there, there. In the meantime until then, the rest of us are all left ‘un’ comfortably numb. A poll needs to be done if families are to continue to have the s 20 thwarted in their face or the fear of it’s mention including seeking answers to the question ‘How many parents did not sign one?’ because when parents get to see the latest, could anyone really blame them all if they ‘refused’ to sign it given what has come out with this Council? It will naturally give them concerns in regards to their own Council as to their real motive and integrity? Then what about all the caselaw used already now re family court.This case hi-lighted is just the tip of the iceberg?

    • Yes I do think it is the tip of the iceberg. Only a few small number of cases are published as we all know and some of them are picked up by the legal bloggers. I can’t ,actually I know I am not the only parent who reads the blogs muttering that happened to me, why can’t I get human rights damages, a judge that rips into the LA etc.
      It is not as if LA’s can claim ignorance, they know what they are supposed to do, they are advised by lawyers, unlike parents under a section 20, lets expose bad practise the LA’s and the courts in many cases are not. My case was in the High Court, I was certainly due damages, I didn’t get them, draw your own conclusions you are more likely than not right.

  6. Pingback: Local Authority unlawfully caring for child for four years (section 20 abuse) | | truthaholics – seachranaidhe1

  7. Sadly, yet again an all too familiar issue for those of us practicing within the family justice system and a particular bugbear, having come across it more times than I would like to admit. However, what is not addressed in any of the cases is the issue of contact between parent and child whilst said child is subject to S20. In each and every case I have had the misfortune to have witnessed (and there are many) parents have been subjected to restriction, control and supervision of the time they have been ‘allowed’ to enjoy with their child, not to mention assessment. How does this work? A body with no PR supervising and restricting a person with PR. I agree that a routine of sorts needs to be agreed for the benefit of the child but agreed is the operative word. No doubt the argument would be that given the choice, most parents would wish to spend all day, every day with their offspring and this would raise concerns. If such concerns are valid then they will invariably meet threshold therefore underpinning the arguement that the matter needs to be brought to the attention of the court at the earliest opportunity. S2O has its place, particularly in times of crisis. It should never be utilised as an opportunity for LA’s to undertake a fishing expedition with a view to bolstering up the evidence for court proceedings or to give them anything other than the briefest of breathing spaces before proceeding to the next step.

    • Quite right, on both contact (and LAs acting as though S20 gives them PR) and it being wrong to use it as an evidence gathering exercise

      • Is being placed on supervised contact without a court order a criminal act? Humour me I am a parent and my local police force mainly look for stolen bikes, so won’t be bothered anyway.

      • ashamedtobebritish

        No it’s not criminal (morally wrong mostly) because they have more PR than you, which gives them more say

      • It depends on the circumstances to be honest if say in this example the child’s held on S20 it’s not illegal they can say they want it but can’t force you to do it without a court order
        If the child is on an order even interim one then they can request supervision the main important thing to remember is that they can’t STOP contact without a 34.4 order x

    • All what you have said and i can’t count the amount of times i have came across parents who then have been of the wrong belief their PR is lost at the adoption decision stage and not the adoption order (rubber stamped) stage.Then this belief is strengthened by the fact their LA failed to invite them to any more meetings when they were supposed to still be getting some level of contact (fully loaded with the parent(s) apologies for not attending meetings they were not/and should have been getting invited to.

  8. Pingback: Fact checking | This Week in Fostering

  9. Children in care should always have access to phone and internet, should be allowed to speak their own language and should also be free to discuss anything they like with their parents when they are visited.by them.
    Alas all these things are denied them by cruel unfeeling social workers !!

  10. Pingback: Local Authority unlawfully caring for child for four years (section 20 abuse) | By @suesspiciousmin  – National IRO Managers Partnership

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