This is a Circuit Judge decision made in my local Court (it is not a case that I or any of my colleagues are involved in, so I can write about it) so I will try to avoid much comment and stick to the reported facts.
Re X, Y and Z (Damages: Inordinate Delay in issuing proceedings) 2016
Three children had been s20 accommodated from January 2013 until July 2015 when an Interim Care Order was made. The Court determined that the s20 had been lawfully entered into and was valid, but of course on the authorities, a valid s20 does not prevent a human rights breach based on delay. Whilst the mother in this case had never formally withdrawn her consent or lodged an objection, she had been asking for more contact with the children and saying from time to time that she would like them to come home.
- The mother clearly frequently stated that she would wish to care for the children and certainly to see them :
- i) 8.2.13 Letter from Z seeking to see the children.
ii) 1.3.13 Z asks for contact and to have the children back in her first meeting with a social worker
iii) 3.4.13 Z seeks fortnightly contact in a telephone call.
iv) 5.9.13 LAC review – stated that Z would like to be able to care for the children.
v) 14.1.14 Report for LAC review notes that Z would like to see the children and that she sometimes states she wants to care for the children and sometimes that she just wants to have contact with them.
vi) 8.4.14 Legal Planning Meeting Solicitor for Z stated that she had requested both children be returned to her care as soon as possible…if not returned to her care, would like increased contact.
vii) 26.11.14 LAC Review Z would like to be able to care for the children.
The Judge ruled that the children’s article 6 and 8 rights were breached in the following ways
- It follows from all that is set out above that I make the following declarations:
- i) West Sussex County Council acted unlawfully and in violation of the Convention Rights of X, Y and Z as follows:
a) Purported to exercise parental responsibility for X and Y for a period of almost two and a half years when they did not hold parental responsibility for the children.
b) Failed to promote contact between the children ,X and Y and their mother Z.
c) Failed to issue care proceedings for almost two and a half years causing the children to be without access to independent representation, failing to carry out adequate assessments and allowing the children’s permanence plan to drift.
d) The Independent Reviewing Officer failed to challenge the conduct of the Local Authority sufficiently robustly.
The judgment contains analysis of the relevant authorities on s20 breaches, s20 drift, human rights claims and calculating quantum.
The Judge concluded that each of the children should receive the sum of £20,000 in damages (*initially, with the case being called X, Y and Z, I’d assumed three children and hence £60k, but I am told two children. Still £45k is a lot of money)
- The factors to be considered for the children are substantially different to those for the mother and consequently must be assessed separately. The main factors in relation to quantum are :
- i) A failure to assess their needs for an inordinate period of time – over two years before any report was obtained;
ii) The fact that they were denied access to any independent legal representation for two and a half years – of particular importance when they had no relatives in the country who would be able to care for them and when they had been the subject of apparent abuse during their time in Jamaica;
iii) Little promotion of contact with their mother even though X indicated in February 2013 that he would like to go back to her – there was no contact for the next twelve months;
iv) No comprehensive assessment of their needs although it was indicated as early as March 2013 that such an assessment was required;
v) Frequent changes in placements without any input from anyone with parental responsibility
vi) Placement with W, the previous foster carer, without any such assessment or understanding of any abuse they had suffered in Jamaica;
vii) The fact that the children are now in separate long term foster placements with no contact with each other or any other relative and X is not in a culturally appropriate placement;
- It is apparent that the end result for these children is not a good one. It is not possible now to say that the outcome would have been any different if proceedings had been issued in early to mid-2013 which should have occurred. However, it is difficult to see how the outcome would have been much worse and the loss of a chance of a better conclusion must be reflected in any award that is made.
- This case appears to be at the upper end of the bracket that has been awarded in similar cases. The only aggravating feature which is not present in this case, which is present in the majority of other such cases, is the fact that I have found that the s.20 agreement is a valid one. I am not going to set out all of the possible comparators as they appear in the table in the Medway case but I would simply state that this case involves the longest period as well as a poor outcome which may not have been the case without the breaches. As a result due to all of the issues which have been highlighted I am satisfied that the children should be awarded the sum of £20,000 each for all of the breaches of their Article 6 and 8 rights.
In relation to the mother
The Mother’s Award
- The mother is in a different position as she did have the benefit of legal advice from June 2013 onwards and as a result would have been able to withdraw her consent at any time thereafter. This must be of significance in considering damages as the inordinate delay in this case is the most troubling aspect and that delay could have been stopped at any time by the simple act of instructing her solicitor to withdraw her consent.
- It is argued on behalf of the Local Authority that this feature is of such significance that it should mean that the mother would receive ‘just satisfaction’ by way of a declaration alone. However that ignores the other crucial factors in her case which include :
- i) The frequent requests for contact to her children which were simply ignored by West Sussex although there was no legal basis to do so;
ii) If proceedings had been issued the Local Authority would have been obliged pursuant to s.34 Children Act 1989 to promote such contact;
iii) The failure to properly assess the mother due to the fact that she had been fully assessed in the previous proceedings some five years earlier.
- It seems unlikely that the children would have been placed with their mother if the proceedings would have been commenced in a timeous fashion and as such there does not need to be any award for the loss of that chance. However, the same cannot be said in relation to contact as that may have been very different if addressed much earlier. The children are now stating that they will not see their mother but that was not the position when they first arrived at Gatwick in January 2013. This loss is even more significant now that each child has no contact whatsoever with any member of their family.
- In these circumstance the appropriate level of damages for the mother must be far lower than for the children and I assess the figure of £5,000 as the correct amount to compensate her for her Article 6 and (more significantly) Article 8 rights.
Looking at the chronology given in the judgment, there was involvement with lawyers as early as 24th June 2013, which was still 2 years before proceedings were issued.
The Judge was very critical of the Independent Reviewing Officer (IRO), who would have been holding Looked After Child Reviews at regular intervals during the 2 1/2 years of s20. He found that they, too, had been responsible for breaches of both the mother and the children’s human rights.
- The Independent Reviewing Officer failed to challenge the conduct of West Sussex and did not promote care proceedings. The functions of the IRO are set out within s.25 Children Act 1989 and they include monitoring the performance of the Local Authority of their functions in relation to the child’s case. In the case of A and S v Lancashire CC  EWHC 1689 at para 168 it was submitted (and Jackson J did not demur) that the task of the IRO was to “monitor, persuade, cajole, encourage and criticise fellow professionals in the interest of the child”. Their roles are more fully set out within the “IRO Handbook” which provides the relevant statutory guidance. In the Lancashire Case it was found that the failures of the IRO amounted to a breach of the children’s rights.
- The actions of the IRO in this case are fully set out within the statement of Children’s Safeguarding Manager and which is referred to above, which concludes with a list of ‘Strengths’ and ‘Areas for Development’ and the latter included :
- i) “the Review minutes do not consistently contain sufficient specific evidence of IRO challenge, especially on issues in relation to progress towards permanence”
ii) “the decision specific to the permanence plan was not specific enough and did not contain any target dates”
iii) “would have expected more explicit detail in relation to the permanence plan of long term fostering and the need to seek legal advice”
- It does not seem to me that this adequately highlights the deficiencies of the IROs (there were two) in this case. There does not appear to be any note whatsoever of the IRO cajoling the Local Authority on timescales and this can be highlighted by two simple issues :
- i) There is a bald statement in the second review held in May 2013 that an SGO assessment is about to commence in relation to the paternal aunt. This is repeated in the fourth review in January 2014 which records that “an SGO assessment will be undertaken at the appropriate time”. It is noted at the fifth review in July 2014 that the paternal aunt still wished to have the children living with her under SGOs but the assessment is still not there some fourteen months after it was first raised. This is a simply appalling delay and does not seem to be criticised by the IRO – if there is not going to be criticism in such cases then one has to ask when would it ever occur?
ii) The IRO was aware in May 2013 that the mother wanted contact to the children but no decisions were made on this crucial point at the time. In September 2013 it was noted that indirect contact had happened and the next stage would be to consider re-introducing direct contact yet by the fourth review it is simply noted that they were “working towards direct contact”! The first face to face contact did not take place until February 2014, a full 13 months after the children had arrived in the UK with the mother saying that she wanted to see the children throughout and the eldest child, X, having said he would like to see his mother in February 2013. It is entirely possible that the contact would not have been successful (as has in fact occurred) but it must be the duty of the IRO to challenge this astonishing delay in attempting such contact in circumstances when the children had no involvement with any member of their birth family.
- The lack of urgency in the case is breath-taking and it is simply wrong to point out the failures of the IROs to force the issues as an “Area for Development”. It was a total failure to “monitor, persuade, cajole, encourage and criticise fellow professionals in the interest of the child” as they should have been doing. This was clearly a case that should have come before the courts years before it actually did yet the IRO did not appear to put any pressure upon the Local Authority to ensure that this occurred. There is power within s.25B(3) Children Act 1989 for an IRO to refer the case to CAFCASS if it is considered it was appropriate to do so. It is difficult to understand why such action should not have been carried out in this case in order to ensure that the welfare needs of these children were fully protected.
- It follows that the failures of the IRO were sufficient in this case to amount to a breach of the children’s and the mother’s rights to family life and a fair trial.
If I were a betting man, and I am, I would expect an increase in care proceedings issued when the September set of CAFCASS stats come out. And the volume of care proceedings issued is already at an all-time high.