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Incompatible

 

I think during one of the many Writers Guild Strikes in America, the hit TV series Moonlighting, which was built around the ridiculous chemistry between its two leads, David Addison (played by a Bruce Willis so young that he had hair and had never got any shards of glass in his feet) and Madelyn Hayes (a never better Cybil Shepherd), instead ran with a whole season without those two in it, and trying to base the show around two minor cast members Herbert Viola and Agnes DiPesto.

 

It did not really fly.  In the words of Douglas Adams ‘it hung in the air in the same way that bricks don’t’

 

It occasionally still makes me wince to think of that dreadful error of thinking.

That portion of Moonlighting, I would be prepared to give a declaration of incompatibility for.

 

All of which is a sprawling and ramshackle opening to Coulibaly v Coulibaly 2018  (which joyously has a “Rev no 1” in its full title, implying that there’s more to come, yes please!)

 

http://www.bailii.org/ew/cases/EWHC/Fam/2018/936.html

 

As far as one can tell, this case began as a private law dispute with the mother becoming very concerned that the father would abduct the children. It is not clear whether that has any basis (we know he DIDN’T, but not whether it was a rational fear that he MIGHT), or what it was that led to a Local Authority obtaining an interim care order and removing the child.

In any event, the bundles for the Court were delivered via wheelbarrow, if not actual dumper truck.  (And yes, I did hover over google images of Big Trak for this moment… )

 

  1. There was listed today, with one day allowed, a number of wide-ranging applications for declarations pursuant to section 4 of the Human Rights Act 1998 that a number of sections of the Children Act 1989, and also the whole of the Child Abduction Act 1984, are incompatible with the European Convention on Human Rights.
  2. There were delivered to my room yesterday afternoon 7 lever arch files of material. I have not counted up the number of pages, but if one were to assume about 300 to 400 pages on average per bundle, then somewhere between about 2,100 and 2,500 pages are involved. Frankly, the bundles are not coherently arranged and presented, and I could not even readily identify the skeleton arguments for this hearing. In any event, the applicant’s series of written submissions themselves total about 70 pages.

 

A number of sections of the Children Act and the whole of the Child Abduction Act? Tell me more, tell me more

 

 

  1. The proposition that certain provisions of the Children Act 1989 are incompatible with the European Convention on Human Rights was first formally raised in the High Court by an appellant’s notice issued by Mrs Coulibaly on 2 May 2017. Since then she has, at various times, filed a considerable number of supplementary documents and submissions, the most recent of which was earlier this week. That procedural history, of course, creates a somewhat confusing moving target, in particular for the Lord Chancellor, who has been named as the respondent to these applications, to meet. However during the oral submissions of Mr Duke this morning it was clarified and confirmed and agreed that, by a combination of her appellant’s notice dated 2 May 2017 and her various subsequent written skeleton arguments or written submissions to the court, and the oral submissions made today, the totality and scope of all the applications for declarations of incompatibility is as follows.
  2. First, that section 2 of the Children Act 1989 is incompatible with Article 3 of the European Convention on Human Rights (ECHR); second, that section 8 of the Children Act 1989 is incompatible with Article 3 of the ECHR; third, that section 38 of the Children Act 1989 is incompatible with Articles 3, 5, 8, 9 and 10 of the ECHR; fourth, that section 50 of the Children Act 1989 is incompatible with Article 3 of the ECHR; fifth, that section 97 of the Children Act 1989 is incompatible with Article 3, read with Article 10, and also with Article 6 of the ECHR; sixth, that section 1 of the Child Abduction Act 1984, and also the whole of that Act, are incompatible with Article 3 of the ECHR.

 

 

Well, if Mrs Coulibaly succeeds in this application and the High Court declare sections 2, 9, 38, 50 and 97 of the Children Act 1989 incompatible with the HRA, there will be champagne corks flying in the household of Ian from Forced Adoption.  But perhaps let’s not get the ice buckets out just yet.

 

Let’s be honest, if I was writing up a law report that junked an entire Act and large chunks of another, I’m burying the lede under all that Moonlighting stuff….

Mrs Coulibaly was not represented and her brother Mr Duke spoke on her behalf as a McKenzie Friend.

We shall observe with interest how he develops this wide-ranging submissions.

 

  1. I now come in turn to the sections of the Children Act 1989 which it is alleged are incompatible with one or more of those various rights under the European Convention on Human Rights, and I will briefly describe and address the arguments. It will emerge that some points and themes, particularly in relation to international child abduction, recur several times in relation to a number of the statutory provisions under challenge. The fundamental and essential point is an assertion by, and on behalf of, Mrs Coulibaly that the statutory provisions simply are not strong enough and effective enough to prevent international child abduction which, she submits, may amount to “inhuman or degrading treatment” within the meaning of Article 3 of the Convention. Without so holding, may I make quite clear for the purposes of this case and this judgment that I fully accept that international child abduction, whether it takes the form of unlawful removal from this country, or unlawful retention of the child abroad after a lawful removal, does, or may, expose the child concerned to a form of inhuman or degrading treatment. So, insofar as child abduction is the fear of Mrs Coulibaly, and insofar as her argument focuses on child abduction, I readily accept, but need not keep on repeating, that Article 3 is engaged.
  2. During the course of his submissions, Mr Duke said that “the Children Act is useless” and that “the entire Act needs to be rewritten.” Part of the context of his argument is that circumstances have changed in the almost 30 years since that Act was enacted. International child abduction has become more prevalent, and some of the safeguards such as strict border controls on exit have tended to be removed or relaxed. Another phrase used a number of times by Mr Duke during the course of his submissions is that “the Children Act is incomplete.” Those points and submissions indicate, to my mind, the flaw or fallacy in the whole, or much, of the argument on these applications. The issue for the court on an application under section 4 of the Human Rights Act is whether or not a provision of the primary, or any subordinate, legislation in point “is compatible” with a Convention right, or whether it “is incompatible” with a Convention right. That is a wholly different question from whether there are gaps in a particular statute, or the whole corpus of legislation generally, and whether or not an Act of Parliament is “incomplete”. I readily accept, for the purposes of this hearing and this judgment, that mechanisms for preventing the scourge of international child abduction may be able to be strengthened; but that is a world apart from saying that such provisions as there are in the legislation, whether specifically directed to child abduction or more generally, are themselves incompatible with Article 3.

 

 

I think the best argument (and I use best in fairly loose sense) is in relation to section 38 – which is interim care orders. Mr Duke argued that the power to remove a child under s38 is a restriction of the child’s liberty (in that the State in the form of the LA get to decide where the child lives), so unless any of the criteria in Article 5 are made out, that’s incompatible with Article 5

 

1Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law

(a)the lawful detention of a person after conviction by a competent court;

(b)the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c)the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d)the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e)the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f)the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

 

I would agree with Mr Dukes that none of those criteria apply to an interim care order – but the problem in his argument is that Article 5 only applies if the Court agree with him that an interim care order is depriving a child of their liberty  [Spoiler alert – the Court do not]

 

  1. I turn, next, to the argument that section 38 of the Children Act 1989 is incompatible with Articles 3, 5, 8, 9 and 10 of the Convention. Section 38 of the Children Act falls within Part IV of the Act, which deals with care and supervision. Section 31 of the Act makes provision for what I will call “full” care or supervision orders. Section 38 makes provision for the making of interim care or supervision orders. Again, it is not necessary to cite any of the express provisions of section 38, for much of the argument of Mr Duke is directed not to what section 38 does contain, but, rather, to what it fails to contain. There is, however, one overarching submission in relation to section 38, namely that it is incompatible with Article 5 of the Convention. I have already quoted the opening words of Article 5 above. The submission is that when an interim care order is made and implemented, it has the effect of depriving the child or young person concerned of his liberty. By Article 5 no one shall be deprived of their liberty save in the cases then listed at paragraphs (a) to (f), and in accordance with a procedure prescribed by law. Clearly, when an interim care order is made there is a procedure prescribed by law, namely the provisions of section 38 itself, but the thrust of the submission of Mr Duke is that the circumstances in which an interim care order is made do not fall within any of paragraphs (a) to (f). I do accept that most of those subparagraphs are clearly not in point at all, but, as Mr Neil Sheldon submits on behalf of the Lord Chancellor, one has to have regard to the content of the subparagraphs in order to understand what is contemplated by the words “deprived of his liberty”, which is proscribed by Article 5, save in the permitted circumstances.
  2. I accept the submission of Mr Sheldon that when a child is taken into care pursuant to the making of an interim care order, he is not thereby “deprived of his liberty” in the manner which Article 5, read as a whole, contemplates. Further, I accept the submission of Mr Sheldon that if, in the particular circumstances of an individual case, there is a deprivation of liberty, then that deprivation of liberty can be the subject of case-specific challenge under the provisions of section 7 of the Human Rights Act. This indeed ties in with an important overarching point. The express effect of section 6 of the Human Rights Act 1998 is that “It is unlawful for a public authority to act in a way which is incompatible with a Convention right.” That section is binding on all public authorities, including, indeed courts. The provisions of the Children Act 1989, wherever they confer a discretionary power, always have to be read and applied with regard to section 6 of the Human Rights Act 1998 and any relevant provision of the Convention. If Mr Duke is correct in his argument that the making of an interim care order necessarily infringes a right guaranteed by Article 5, then the argument would apply no less to the making of a “full” care order under section 31 of the Children Act 1989. Frankly, carried to its logical conclusion, the argument and submission of Mr Duke is that every care order, whether an interim order or a full order, that has ever been made since the Children Act 1989 came into force has been contrary to Article 5 of the Convention, and has been unlawful since the Human Rights Act came into force. I admire Mr Duke for his courage and boldness in making that submission, but, at any rate at the level of the High Court, I reject it as being unarguable.
  3. Other reasons why it is said that section 38 is incompatible with a range of Articles of the Convention are the following. First, Mr Duke argues that there is nothing in section 38 itself which compels a local authority to provide medical assistance to a child whom they have taken into their care pursuant to an interim care order. This, he says, may involve a breach of Article 3 of the Convention. Just to understand the context in which the submission is made, I have been told (I stress that I have absolutely no independent evidence whatsoever with regard to this) that on 7 February 2018 Mrs Coulibaly’s son was “forcibly removed” from her care by the police. She says that her son later reported that the police had hurt his arms, and they were really painful. The complaint is that it was apparently not for 13 days that the local authority arranged for her son to be seen by a doctor. Mr Duke submits that there should be an added provision within section 38, or elsewhere in the Children Act 1989, to compel a local authority to undertake an immediate, or very early medical examination of every child whom they take into their interim care, both to check that he or she has not been harmed during the process of removal, if forcible, and also to check for such matters as allergies. He submits that the absence of some such express duty in section 38 or elsewhere in the Act infringes the positive obligation on a state to ensure that no one is subjected to inhuman or degrading treatment, as Article 3 of the Convention requires. Again, I make absolutely clear that I express no view whatsoever on whether or not it should be made mandatory for a local authority immediately to arrange a medical examination of a child taken into their care. That, again, is a matter for government and Parliament. But at its highest, in my view, this is another example of the Act being “incomplete”. There is nothing in this regard that renders the Act incompatible with the Convention.
  4. Mr Duke argues also that section 38 of the Act is incompatible with Article 8 of the Convention.  He says, in particular, that in order that the important rights under Article 8 of the Convention are respected (which is what Article 8 requires), there should be express statutory provision for what he calls “a transfer plan” before any child is taken into care. He submits that a local authority can at the moment “just come and grab a child, which disrupts the child’s private life” and that unless there is an express statutory requirement of “a transfer plan”, section 38 is incompatible with Article 8. He further says that often, when a child is taken into care, the child is not enabled immediately to take his own personal belongings with him, and that in order for the Act to be compatible with Article 8 there must be express statutory provision for a child to be able to do so. Again, in my view, these are, at best, matters of good practice, or examples of the legislation being “incomplete”, but the absence of express statutory provisions of the kind that Mr Duke contends for does not render section 38 itself incompatible.

 

I say, that ‘transfer plan’ is a good idea, I wonder if we could call it by a shorter name and have it be a mandatory requirement before the making of an interim care order. We could call it, oh, I don’t know – a care plan?

 

Let us just enjoy the fine work of Holman J once again

 

If Mr Duke is correct in his argument that the making of an interim care order necessarily infringes a right guaranteed by Article 5, then the argument would apply no less to the making of a “full” care order under section 31 of the Children Act 1989. Frankly, carried to its logical conclusion, the argument and submission of Mr Duke is that every care order, whether an interim order or a full order, that has ever been made since the Children Act 1989 came into force has been contrary to Article 5 of the Convention, and has been unlawful since the Human Rights Act came into force. I admire Mr Duke for his courage and boldness in making that submission, but, at any rate at the level of the High Court, I reject it as being unarguable. 

 

As I’ve suggested above, the article 5 v s38 is very much Mr Duke’s best point.  If you think that this dissection of his best point doesn’t augur well for his less good ones, you are correct.

Surprisingly, Holman J does not grasp the opportunity offered to him by Mr Duke to overturn huge chunks of statute that have been running for thirty odd years.

 

  1. For the reasons I have given, I am crystal clear, even at this short summary hearing today, that none of these applications for declarations of incompatibility are, in the least, arguable. I will accordingly make an order which, first, recites by list all the applications that Mrs Coulibaly has made for declarations of incompatibility as I listed them at the outset of this judgment, and then orders that all the applications for declarations of incompatibility listed under that recital are summarily dismissed.

 

So the law remains intact.  Well, at least until Coulibaly v Coulibaly Rev no 2, which I’m looking forward to. I shall be immensely disappointed if the Act of Union, Magna Carta and  the Licensing Act 1872 (which makes it a criminal offence to be drunk in a pub)

 

 

I’m sorry if the raw charisma and chemistry  of Hubert and Agnes has just burned a hole initially through your screen and now through your retinas.

 

Human Rights claims and statutory charge – an answer? Sort of

In the words of Erik B and Rakim

 

It’s been a long time, I shouldn’ta left you, without a strong rhyme to step to

 

But now, to paraphrase the one-hit wonder gangster rapper from Leicester,  “Return of the Pack – oh my god, Return of the Pack, here I am, Return of the Pack, once again, Return of the Pack, Pump up the world”

 

Which is a more heavy rap-related intro than intended, but basically, now I’m back, to show you…

 

P v a Local Authority 2016

High Court y’all.  Keehan J in da House.

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2779.html

This one is actually a Keehan J shout out to the old skool, if by old skool, you mean (and I do),  the return of a case from March 2016

https://suesspiciousminds.com/2016/03/11/child-in-care-wanting-parents-to-have-no-information-or-involvement/

 

That was the case where the young person did not want his adoptive parents to know anything about the process of gender reassignment, and the LA went to Court to ascertain whether that was in conflict with their duties under the Children Act 1989 to consult with parents when they are looking after a child.

Unfortunately, this happened

 

Background

 

  • In September 2015 P moved to a local authority unit for semi-independent living. Although there were concerns about his mental well being and general welfare, P settled in to this accommodation. He was and is a vulnerable young person with a history of repeated episodes of self harm, taking overdoses and extremely poor mental health.
  • On 11 January 2016 an employee of the local authority disclosed personal information about P, including his forename and transgender status, to third parties who are friends of P’s adoptive parents. P was originally told that the address of the unit where he was living had also been disclosed: this later appears not to have been the case.
  • The impact of this wrongful disclosure on P was immediate and dramatic. He felt unsafe at the unit and left. He first stayed with his girlfriend and then at a number of residential units provided by the local authority. P’s mental health was very severely compromised: he made a number of suicide attempts and there were several episodes of self harm.
  • In more recent months P’s mental health has stabilised. I was very pleased that he was well enough to attend the last court hearing on 26 August 2016.
  • Although the local authority promptly told P of the disclosure of his personal information, I regret that it was slow in (a) giving P a full account of what had happened and (b) giving P a full and unreserved apology. In February the then Director of Children and Family Services wrote a letter of apology to P and offered to meet with him to answer any questions he may have had. P did not take up the offer of a meeting.
  • The member of staff who made the wrongful disclosure was suspended by the local authority and a formal investigation was undertaken pursuant to the council’s disciplinary policy. I do not know the outcome of that process.
  • Regrettably, and notwithstanding that P is a ward of this court, the local authority did not bring this breach of P’s privacy to the attention of this court. The matter was raised with the court by P’s lawyers.
  • The local authority, very sensible and rightly, decided to concede it had, by the inexcusable actions of one of its employees, breached P’s Article 8 rights to respect for his family and private life. They agreed to pay P damages in the sum of £4750. I am satisfied that in light of the very considerable distress suffered by P and the immediate adverse impact on his mental health, this appears to be an appropriate level of damages to be awarded to P.

 

That all seems straightforward. The LA messed up, and they agreed a sum of compensation to pay to P and P was content with that sum, and the Judge felt it was the right amount.

So why is this even a thing?

Well, it is because the Legal Aid Agency (having by the way refused to give P funding to make a claim for damages) wanted to take that £4750 and use it to repay the legal aid that P had had in the original wardship proceedings. This is called the Statutory Charge, and it comes up most often in divorce cases about money. The point there is that if you get legal aid (or ‘free’ legal representation paid by the taxpayer and you win money out of the case, you have to pay the legal aid back out of that money. ) That makes sense with divorce. It doesn’t make a lot of sense here.

It was P’s legal rights that were breached, and the £4,750 is compensation for that breach. Obviously he should get the money.

 

But no, the statutory charge bites on the compensation and P would get nothing.

That’s because of our dear old friend LASPO, the Statute that keeps on giving (if by giving you mean stealing pennies from the eyes of corpses)

 

  • Its current statutory basis is set out in s. 25 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’) which provides:

 

“Charges on property in connection with civil legal services

(1) Where civil legal services are made available to an individual under this Part, the amounts described in subsection (2) are to constitute a first charge on—

(a) any property recovered or preserved by the individual in proceedings, or in any compromise or settlement of a dispute, in connection with which the services were provided (whether the property is recovered or preserved for the individual or another person), and

(b) any costs payable to the individual by another person in connection with such proceedings or such a dispute.

 

And the killer words her are “in connection with”  – basically the Legal Aid Agency position is that the statutory charge bites (and thus they can take the compensation and take all of the legal aid costs spent on other stuff and P just gets anything left over) if there’s a connection between the cases at all.

There’s one exception in the LASPO Act (none of which apply to compensation from Human Rights claims) and the Lord Chancellor has power to exempt the statutory charge in certain cases

 

 

  • The Lord Chancellor has authority to waive the statutory charge, in whole or in part, where she considers it equitable to do so and two conditions are met.

 

Those conditions are:

(a) the Director was satisfied, in determining that a legally aided party qualified for legal representation, that the proceedings had a significant wider public interest; and

(b) the Director in making the determination took into account that there were other claimants or potential claimants who might benefit from the proceedings:

see regulation 9 of the CLA(SC)R 2013.

 

  • The phrase ‘significant wider public interest’ is defined as being a case where the Director of the LAA is satisfied that the case is an appropriate case to realise real benefits to the public at large, other than those which normally flow from cases of the type in question, and benefits to an identifiable class of individuals, other than the individual to whom civil legal services may be provided or members of that individual’s family: see regulation 6 of the Civil Legal Aid (Merits Criteria) Regulation 2013 (the ‘LA(MC)R 2013’).
  • The LAA asserts that the two conditions set out in regulation 9 of the CLA(SC)R 2013 must be satisfied at the time the application for funding is made and the Director makes the determination that the application qualifies for funding. The purpose of the waiver is to allow legal aid to be granted for a single test case without disadvantaging the applicant should he or she fail to secure damages and/or all of their costs.

 

 

The Lord Chancellor and the Legal Aid Agency were both represented in these proceedings and were clear that Reg 9 had not been sought at the time the application for funding was made (of course it hadn’t, because the breach hadn’t happened at that point)  and so it couldn’t now be applied.

Their very reasonable solution was that P would get his damages, provided that his solicitors, silk and junior counsel agreed to waive all of their fees from the wardship case (i.e having represented P in a very complex and legally difficult case and got everything that he wanted and advanced the law in a way that will help others in similar circumstances, they should not get paid for any of it)

 

 

  • In taking a broad and pragmatic approach leading counsel for the local authority submits that the adverse consequence of the statutory charge, that P will receive not a penny in damages, is unfair and makes no sense. I have a very considerable degree of sympathy with those sentiments.
  • In this context I deprecate the stance taken by the LAA that the issue of P receiving any of the awarded HRA damages would be alleviated if his leading counsel, junior counsel and solicitor simply waived their professional fees for acting in this matter.

 

 

The Judge mooted the idea that if there was a break between the two cases (this is my solution so I’m interested in it)  i.e

  1. The solicitors and counsel deal with the wardship or care proceedings on legal aid

2. Separately and without charging for it, they write to the LA about human rights breach and ask for compensation

3. LA settles the HRA claim (and possibly pays the costs of step 2 into the bargain)

 

Then why is the money recovered as a result of step 2 ‘in connection with’ step 1?  And why should the LAA get their money back from step 1 if step 2 is nothing to do with it, and no legal aid money was spent in getting step 2 achieved?

I think this is a damn good point (immodestly, because I’ve been saying it for ages). The LAA unsurprisingly disagree

 

 

  • The principal supplementary submissions of the LAA may be distilled into the following 10 points:

 

(a) it was common ground between the parties at the hearing on 26 August 2016 that any damages recovered in relation to the breach of P’s Article 8 rights (the ‘HRA claim’) would be damages recovered in the wardship proceedings;(b) the creation of new proceedings avowedly for the purpose of avoiding the statutory charge would not be an appropriate use of the court’s powers. It would be wrong to seek to bring about the disapplication of the statutory charge by changing the previously contemplated approach to the scope of this judgment or disapplying certain rules of civil procedure.

(c) The issues raised by the court about the application of the statutory charge cannot be resolved in a factual vacuum.

(d) Even if P’s damages were awarded in freestanding proceedings which were not funded by the LAA, the statutory charge would still apply to those damages if they were recovered in “proceedings in connection with which the [civil legal] services were provided.” The language of ‘in connection with’ is obviously very wide. I was referred to the case of Cassidy v. Stephenson [2009] EWHC 1562 (QB) where Holman J. held that money recovered from the settlement of professional negligence proceedings brought as a result of a failed clinical negligence (which was funded) was not property recovered in a dispute “in connection with which” the legal services for the clinical negligence claims were provided.

(e) The propositions set out in paragraphs 7 to 10 of the email of 20 October 2016 are correct, save that the LAA is not privy to the full background to this case (eg the local authority’s response to P’s letter before action).

(f) The HRA claim cannot be said to be ‘wholly unconnected’ to the subject matter of the wardship proceedings. The LAA asserts that:

“As the LAA understands the position, the Court considered P’s circumstances and the extent to which information about him and his whereabouts should be disclosed in the inherent jurisdiction proceedings. The HRA Claim arose, as the LAA understands it, as a result of conduct by the LCC that was not consistent with the way in which that issue was resolved, with the Court’s assistance, in these proceedings. It was therefore reliant on matters determined in RA’s favour in the wardship proceedings, for which funding for civil legal services was provided.

Civil legal services were provided for the wardship proceedings, in which RA was made a ward of the Court, and restrictions were imposed on disclosure of information in relation to RA. It was the fact that LCC acted contrary to the resolved position that has given rise to the HRA Claim. The LAA funded the wardship proceedings, including for a declaration that there had been a breach of the injunction imposed by the Court. “

(g) It would be artificial to say than any recovery of damages was not made in the wardship proceedings.

(h) Even if the award of damages was made or approved outwith the wardship proceedings, the damages were still recovered in proceedings in connection with which “legal services were provided” (i.e. the wardship proceedings). The LAA relies on the assertion by P’s counsel that the authorities state that HRA claims should be brought within wardship proceedings viz. Re L(Care Proceedings: Human Rights Claims) [2003] 2 FLR 160.

(i) The answer to the question posed in paragraph 15 of the email of 20 October 2016 is “yes” there are reasons why the court should not permit the issue of a freestanding HRA claim. Such a device would be inappropriate and would not result in the disapplication of the statutory charge because, as asserted above, the damages would be recovered in (unfunded) proceedings which were “in connection with” the (funded) wardship proceedings.

 

 

The Judge decided otherwise and ruled that in this case steps 1 and 2 were not ‘connected with’ each other and the statutory charge did not arise on the compensation payable to P. Hooray!

 

 

 

  • It is appropriate for me to deal with each of those points in turn. First, the court is neither bound nor fettered in its determination of the legal issues or the factual matrix of a case by the submission of counsel. In any event counsel were afforded the opportunity to agree or disagree with the alternative analysis proposed by the court and to make submissions. P and the local authority have decided to agree with my propositions and questions. The LAA have had a full opportunity to respond and I can discern no procedural or substantive unfairness in the course I have adopted.
  • Second, to characterise the alternative analysis the court has suggested is ‘avowedly for the purpose of avoiding the statutory charge’ is quite wrong. Rather my objective is to secure, if at all possible, by any legitimate and lawful route P’s receipt of the damages he maybe awarded for the breach of his Article 8 Rights by an organ of the state.
  • Third the factual matrix of this case should be well known to all parties including the LAA. The same is comprehensively set out in the parties’ written submissions and in a detailed chronology prepared on behalf of P. I do not accept the court is considering the legal issues in this case in a factual vacuum.
  • Fourth, with reference to paragraph 64(d) above, I accept the phrase “in connection with which the [civil legal] services were provided” can be given a very wide interpretation. I was not referred to any authority to support a submission that I must give it a very wide interpretation.
  • Fifth, with reference to paragraph 64(e) above, I do not understand the submission that the “LAA is not privy to the full background to this case.” For the purposes of this judgment I have not taken account of nor have I been furnished with material not available to all counsel, save perhaps for one matter which I refer to in the next paragraph.
  • Sixth, with reference to paragraphs 64(f) and (g) above, the LAA appears to have proceeded and proceeds on the basis of a fundamental misunderstanding of the order I made in August 2015: see paragraph 46 above. I did not make an injunction or other order prohibiting the local authority from disclosing personal or private details about P to other persons, save against the local authority disclosing information to P’s adoptive parents: see paragraph 8 above. I made a declaratory order that the local authority was relieved of its statutory duty to give information about P to or to consult with P’s adoptive parents about P or his welfare. The LAA has proceeded and proceeds on the following assumptions:

 

(a) that I made an injunctive order against the local authority;(b) that the employee of the local authority breached the terms of that injunction;

(c) and that P’s claim against the local authority was based on a breach of that injunction.

None of the foregoing assumptions are factually correct. The LAA’s mistake does explain the funding decision of 8 February 2016, set out at paragraph 38 above, to permit P to bring a claim for a declaration for breach of an injunction.

 

  • P’s claim is and was always based upon his Art. 8 Convention right to respect for his private and family life. The claim had nothing to do with the declaratory relief granted to P in the wardship proceedings. This court was not notified of that alleged breach (now admitted) by an employee of the local authority which it should have been because P is a ward of this court and because of the adverse consequences of the wrongful disclosure on P. Furthermore the wrongful disclosure, insofar as it is relevant, was made to third parties and not to P’s adoptive parents. The local authority asserts that the third parties did not, in fact, pass on the disclosed information to P’s adoptive parents.
  • Seventh, with reference to paragraphs 64(h) and (i) above, in light of the correct factual matrix set out above I am not satisfied that the (unfunded) HRA claim in which damages are sought could be said to be “recovered in proceedings in connection with which legal services were provided” (i.e. the funded wardship proceedings). I go further, I am wholly satisfied that the damages resulting from the HRA claim are not “recovered in proceedings in connection with which legal services were provided”. There is no legal or factual connection between the wardship proceedings and P’s HRA claim.
  • The mere fact that P’s counsel in submission referred to the case of Re L(Care Proceedings: Human Rights Claims) [2003] 2 FLR 160 which advises that HRA claims may or should be made in existing proceedings, does not require this court to conclude that P must or may only make a HRA claim in ongoing wardship proceedings. No claim form was issued. The HRA claim and the quantum of damages were settled before a claim was issued. As referred to in paragraphs 58 and 59 above, rr. 21.10 and 8 of the CPR set out the appropriate procedure when a settlement is reached concerning a child or young person prior to the issue of proceedings.
  • I can discern no legal impediment or other reason why I should not permit P by his solicitor to issue a claim form as required by r. 8.2 of the CPR and upon that basis, in due course, proceed to approve the agreed award of damages to P in respect of his HRA claim in those proceedings. The approval of damages can be submitted by email and be dealt on the papers without the need for a hearing. I am confident that the local authority would agree to pay the costs of that process incurred by P’s legal team.

 

Conclusions

 

  • I am bound to find that the Lord Chancellor, by the director of the LAA, has no discretion or power to waive the statutory charge, if applicable, in this case. The preconditions set out in regulation 9 of the CLA(SC)R 2013 must be satisfied at the time the determination of funding is made and a decision to waive the statutory charge must be made at the same time. That did not happen in this case and thus the preconditions are not satisfied.
  • I do not understand why the CLA(SC)R 2013 regulations placed that limitation on the time when a decision whether to waive the statutory charge must be made. I am not aware of any public interest or policy reasons for the same. It is regrettable that the discretion to waive the statutory charge is so fettered.
  • The manner in which the LAA has made determinations on public funding in these proceedings is extremely unfortunate. In some aspects the decisions are plainly wrong and/or unreasonable and in others the reasoning of the LAA is difficult to understand, if not incomprehensible.
  • In my view it would be extremely regrettable if P were to be denied the benefit of the damages awarded to him as a result of the considerable emotional distress and harm to his mental well being he has suffered as a result of the wrongful conduct of an organ of the state.
  • In light of the fact, however, that the LAA refused to fund a HRA claim for damages it appears me that the damages to be awarded to P under the Part 8 procedure were recovered in a claim that did not have the benefit of a public funding certificate. Further I am wholly satisfied that any damages awarded to P in Part 8 proceedings were not recovered “in proceedings in connection with which [civil legal] services were provided.” Accordingly, however erroneous or muddled the LAA’s decision making was on this issue, in my view, for the reasons I have given above the statutory charge is not and cannot be applicable to P’s award of damages.

 

 

Is this the end of it? Not really. Whilst the Judge here paints a route-map for others to follow, there are two major differences from other HRA cases notably the s20 damages cases.

 

  1. The HRA breach happened AFTER the Court hearing and not really in connection with the Court hearing at all. P’s rights would have been breached by what the rogue member of staff did, whether or not there had been a Court hearing. (The Court hearing made it sharper and more vivid and allowed P to easily tap into legal advice from his legal team whom he already knew, but the breach was a breach regardless. It was  a breach of his article 8 rights, NOT as the LAA mistakenly thought a breach of a Court injunction)
  2. The LAA had been asked to fund a damages claim and had refused. That is a material factor in the Judge being able to rule that there was no connection between the two cases.

 

(On the plus side for children and parents, this case probably makes it more likely that the LAA will STOP refusing to fund such damages cases, since if they do, they leave the door open to not being able to recover their original costs out of any winnings, but that in turn means that they will argue that this case doesn’t have broader application)

 

I suspect this is an issue that only the Court of Appeal or Parliament can resolve. It simply can’t be right that where a child or parent has their human rights breached by the State and compensation is paid that they will not get a penny of it. Equally it can’t be right that where the HRA claim is accepted and settled swiftly, that the LA get hit with costs of care proceedings which would be massively more than the legal costs of dealing with the HRA claim itself (and that is a collision course with Supreme Court decisions in Re S and Re T about where costs orders can be made in care proceedings)

Not for the first or last time, the answer is that LASPO is badly drafted and poorly constructed and unfair to real people, and it needs to be reworked.

 

Law for social workers (Part 1)

This piece is aimed at social workers, but it isn’t exclusively for them. Basically, the law has moved very fast in care proceedings since I started writing this blog, and on Twitter yesterday there was a conversation about there not being an easy place for social workers to find out what they now need to know.  So the idea here is two short(ish) pieces that tell you all of the important legal principles and then in part 2, what the specific tests are for each sort of order.

 

None of this is intended to be a substitute for getting legal advice from your own lawyer, it is just a guide to what sort of things the Court is looking for, and what tests they are applying. If you’re very confident about the basics, you can skip to Part 2  (though not immediately, because I am still writing it!)

 

The Acts

 

We all know, I think, that there are two main pieces of legislation involved in care proceedings.

 

The Children Act 1989

http://www.legislation.gov.uk/ukpga/1989/41/contents

 

and The Adoption and Children Act 2002

http://www.legislation.gov.uk/ukpga/2002/38/contents

 

There are a few others that come up occasionally – the Mental Capacity Act 2005,  the Care Act 2015, the Children and Families Act 2014 and various mental health Acts, Housing Acts, if you’re really really unlucky Education Acts.  And of course, the Human Rights Act 1998 permeates everything. In terms of the Human Rights  Act – the big bits that you need to know is that a social worker, as part of the State, owes parents duties under the Human Rights Act – they owe parents an article 6 right to fair trial (which is not limited just to Court, but involves fairness in all decisions) and interference by the State with parents Article 8 rights to private and family life, which can only be done where it is PROPORTIONATE and NECESSARY.

 

Key principles of the Acts

 

  1.  The Child’s Welfare is the Court’s paramount consideration when making any decision – it won’t be the only consideration, but it is the main one.
  2. The Court can only make an order if satisfied that doing so is better for the CHILD than making no order  (the ‘no order principle’)
  3. Any delay is harmful to the child, and has to be justified (the ‘no delay principle’)
  4. The Court should try to make the least serious of the orders available to it, if that will meet the child’s needs  (‘the least interventionist principle’)
  5. There’s a set of guidance of the main issues for the Court to consider when making decisions about children – the Welfare Checklist. Parliament has given us that as a valuable toolkit to reach the right decisions, and you stand the best chance of making the right decisions if you use it.

 

And from Human Rights, the key principles are :-

FAIRNESS  – in all decisions, strive to be fair – take things into account, even when they don’t fit with your hypothesis or initial thoughts, listen to what parents have to say, be honest about what you are seeing, recognise change when it is happening, be willing to consider that you might be wrong. Try to approach the task of working with a family in the way that you would hope someone would work with you if the roles were reversed. Recognise that for a parent, the State can be a scary and powerful force – you might not feel powerful yourself, but be alive to the possibility that that is the way the State can come across. Imagine someone coming into YOUR home, looking in YOUR cupboards, criticising YOUR relationship. It might need to be done, but be aware that it doesn’t feel nice to be on the receiving end.

NECESSITY – is it NECESSARY to do X or Y?  Not just is it helpful or useful or desirable, but did it NEED to be done? And even if it NEEDED to be done, did it NEED to be done in that particular way?

PROPORTIONALITY – looking at what you’re worried about and what you want to do about it, and thinking hard about whether what you want to do is proportionate to the worries that you have.

All of those principles really boil down to being a REASONABLE person – if you are reasonable, and try to do the job in a REASONABLE way, the Court’s are more likely to be receptive to what you’re saying and you are going to be less exposed in the witness box than someone who goes around like a bull in a china shop.

 

The threshold criteria

 

In order for the Court to make an Emergency Protection Order, or a Care Order or Supervision Order, or Interim Care Orders or Interim Supervision Orders, they need to be satisfied that the threshold criteria is met. If there’s no threshold criteria, the Court CANNOT make the order.

The burden of proof (who has to prove it) is on the Local Authority. It is for the Local Authority to PROVE that the child has suffered significant harm, or is at risk of such harm, NOT for the parent to prove that the child isn’t.

The standard of proof (how sure does the Court need to be) is the BALANCE OF PROBABILITIES.  If a Court thinks that something is MORE LIKELY THAN NOT to have happened (in percentage terms 50.000001% or higher) then that is sufficient.  If a Court thinks that the LA has NOT proved that, even if there’s a 49.99999999% chance of it having happened, then in law it did NOT happen. When it comes to factual issues, the law is binary – if it is MORE LIKELY THAN NOT to have happened, then it happened, if not, it DIDN’T.  And if it is exactly 50-50 (which doesn’t happen often, but it HAS happened) then the burden of proof means that the LA failed to prove it was more likely than not, so it DIDN’T happen.

The threshold criteria itself

 

s31 (2)A court may only make a care order or supervision order if it is satisfied—

(a)that the child concerned is suffering, or is likely to suffer, significant harm; and

(b)that the harm, or likelihood of harm, is attributable to—

(i)the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii)the child’s being beyond parental control.

 

The likely to suffer has been quite tricky to resolve over the years – basically, if you’re going to say that a child is LIKELY to suffer significant harm, you need to :-

 

(a) Prove some facts

(b) Prove that those facts mean that there is a risk of significant harm

(c) Prove that it is MORE LIKELY THAN NOT that the risks involved ‘cannot sensibly be ignored’

 

So you don’t HAVE to show that the risk is MORE LIKELY THAN NOT to materialise.  Sometimes, if the level of the possible risk would be very serious, there can be a lesser chance of it happening as long as there is a FACTUAL basis for saying that the risk exists and it cannot be ignored.

 

Case law

The Acts themselves only give you so much – most of the legal arguments are about how to intepret those Acts – what precisely does such and such a word mean, what has to be taken into account when deciding whether such and such applies. Rather than different Courts across the country having the same arguments over and over and coming to different decisions in different places, when an important point of principle is decided  (for example – WHEN does the threshold criteria have to be satisfied? When proceedings were issued? When they finish? What if the child was in foster care for 2 months before issue – the child wasn’t at any risk in that placement…)  a senior Court – the High Court, the Court of Appeal, the Supreme Court decides a case that deals with that point, and that’s the answer from then on  (in this example, threshold has to be satisfied when the Local Authority ‘took protective measures’  – that could be by issuing, or it could be by a section 20 placement or written agreement)

The next time THAT issue comes up, the Court is able to say ‘well, that’s been decided now, there’s a PRECEDENT for it, and we’ll follow that’.   The Children Act has been around for over 25 years and you would think that all of these technical and interpretation questions would have been sorted out years ago now, but they still keep coming, and occasionally the interpretations change or shift a bit.

For basically ALL of the things that a social worker might want to do, or ask the Court for, knowing what the Act itself says is just the tip of the iceberg. The really important information, and the wording that you are working to is set out in case law.  And as I said, it changes.

 

Part 2 is going to tell you what the current case law says about the various tests – and I’ll keep this up to date when it changes. The law is moving quickly at the moment, particularly in relation to adoption.

 

 

I hope this has been useful, feel free to pass it on, email it around, print it out and stick it on notice boards.

If this is your first encounter with Suesspicious Minds – normally there is more sarcasm and 80s pop culture, and weird cases that might make you wince or cry or laugh, so pop in again.

 

If you enjoyed the piece, or the blog, please visit the website about my book, and if it takes your fancy, pre-order it.  I’m 85% of the way to getting it published now, thanks to loads of support and help from very cool people. Be like Fonzie and be cool too.

 

https://unbound.com/books/in-secure

 

section 20 and human rights damages (£17,500 award)

 

Kent County Council v M and K (section 20 : declaration and damages) 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/28.html

 

The judicial trend for curbing the worst excesses of section 20 continues (see for example  https://suesspiciousminds.com/2015/10/21/fast-and-the-furious-tunbridge-wells-drift/ )

Apologies to the people of Kent, I know some of you are readers, and it is nothing personal, I just report the cases as they happen.

In this case, there was NO issue as to whether the original section 20 consent was lawful (the parents had capacity, and the principles laid down by Hedley J had been properly followed), but the drift and particularly here the failure to issue care proceedings in a timely fashion were what led to the human rights claim, and later damages.  Most of the s20 drift cases involve very young children – in fact infants, but this one involved an older child whose difficulties were significant and got worse over time.  This one is unusual in that it was not the parent complaining that drift and delay had impacted negatively on them, but the child arguing that although the mother had granted valid s20 consent and was not seeking rehabilitation of the child, the LA’s failure to issue care proceedings had harmed the child.

 

 K was placed in the care of the LA pursuant to section 20 Children Act 1989 (CA 1989) on 14 December 2011, the LA issued these proceedings on 16 November 2015. The HRA claim is put under three headings: the failure of the LA to assess K; failure to meet K’s needs and the failure to issue court proceedings. The LA deny this claim. K’s mother supports the claim. 

 

Just shy of four years of s20, that does seem like a long time – from a child’s perspective it is a massively long time, more than a fifth of their total years of childhood.

The Judge sets out the background prior to proceedings being issued. It is long, but I’ll put it in full, because it shows clearly the missed opportunities for the case to be seized and the drift put right. Many many LAC reviews.

  1. K was accommodated by the LA, pursuant to s 20 CA 1989, on 14 December 2011. Prior to that she had been living with her aunt, as her mother was unable to cope with her care. K has a younger sister who remains in her mother’s care. Her father has taken no active part in her care, or these proceedings.
  2. The LA had had prior involvement with K. They had completed a core assessment in April 2011 when K was living with her aunt. The assessment recorded the need for M to address her own mental health needs, K’s relationship with her M was difficult which ‘will certainly impact on her emotional and behavioural development’, and ‘[K] may well need some intervention from the primary mental health team to support her with the difficult feelings and interactions she has with her mother and sister’. The recommendations in the assessment included M to give parental responsibility to the aunt.
  3. On 5 December 2011 K’s aunt informed the LA that she was unable to continue to care for K. K’s mother, M, gave her consent to K being accommodated by the LA by telephone that day. There is no issue that this was a valid consent.
  4. The documents show a placement plan was formulated on 14 December, providing that the period of accommodation pursuant to s 20 was for an initial period of four weeks, pending the convening of a family group conference (FGC), to consider whether any alternative family placements could be explored. This plan recorded ‘It is a concern that [K’s] emotional needs has not been addressed in an appropriate way during her short life’. This care plan was signed by M.
  5. At the Looked After Review (LAC Review) on 6 January 2012, it records K needing a referral for therapy/counselling and a referral had been made to the Lenworth Clinic (next meeting 25 January). The care plan is recorded as being ‘Eventual return to birth family’. And under the ‘Assessment’ sub heading, it states a core assessment ‘to be updated’. Under ‘Emotional and Behavioural Development’ it states K is ‘known to CAMHS and plan is that once [K] is settled fully they will start working with her’. These LAC Review minutes are signed by M.
  6. On 11 January 2012 the family met at the FGC, and all agreed that it would be better for K to stay in foster care as none of the family were able to have K live with them. M signed this document, signifying her agreement to this plan.
  7. At the next LAC Review on 27 March 2012 there is a record of a meeting at the Lenworth Clinic on 25 January 2012, an acknowledgement that K needs a referral for therapy/counselling. It records the referral to the Lenworth Clinic and notes ‘no work will be undertaken with her until current foster placement would be confirmed for long term’. The acute difficulties between K and her M at contact are noted. Importantly, this record notes the change in care plan for K to long term foster placement with foster carers, but acknowledges K has not been informed. It records the core assessment has been completed (although no updated core assessment has been produced) and notes it recommends that it would be ‘advisable to convene a legal planning meeting for the [LA] to seek advice regarding [K’s] care status and issue of parental responsibility’. This advice is repeated in the care planning section, where it records ‘legal advice needs to be sought re long-term fostering as permanency for [K] and Parental Responsibility issue’. This topic is recorded in the decisions and recommendations section as ‘Legal advice to be sought re Parental Responsibility Issue By whom – Social Worker and her manager Timescales – 27/04/12′. This document is not signed by M.

 

 

Quick break in the background – the chronology there shows that by April 2012, there had been a decision that there needed to be a legal planning meeting to discuss the child’s legal status and plans for the future. In the next section we learn that some form of meeting with legal happened in June 2012.  We know that care proceedings were not issued until November 2015. Let’s continue.

  1. The advice from CAMHS of K being unable to benefit from individual therapy until she is ‘firmly ensconced within a family unit’ is confirmed in a letter copied to the LA from the Lenworth Clinic. The LA urge CAMHS to reconsider their position in a letter dated 2 May, stating that K is ‘settled down and doing exceptionally well in the foster placement’. In June CAMHS respond to say they have sent the foster carers a questionnaire and when it is returned the referral will be discussed further.
  2. K’s placement broke down on 5 July, in circumstances where her behaviour was so difficult the police had to be called.
  3. At the next LAC Review on 12 September 2012 there is reference in the record of the meeting to a legal planning meeting on 25 June 2012, but no other detail about this meeting has been disclosed. As regards the CAMHS referral it notes K has moved placements and another questionnaire will be sent to her new foster carer. The record repeats that K needs a referral for therapy/counselling and notes the concerns regarding K’s emotional well-being caused by her wish to live with her mother, why her sister lives with her mother and she can’t, and her mother’s inconsistent behaviour at contact. It continues ‘[K] has been emotionally and psychologically affected by her experiences. She does require psychological support as soon as possible…It is hoped that once this [questionnaire] has been received by CAMHS appointments will be set up’. Under the section entitled ‘Legal’ it states ‘A legal planning meeting needs to be pursued with regard to care proceedings’. There is reference to the core assessment and care plan to be updated. Under ‘Decisions and Recommendations’ is recorded ‘Care proceedings to be pursued in order to give this child some stability and long-term placement. The referral to CAMHS to be pursued and the questionnaire to be completed by the previous and present foster carer.’ M did not sign this record.
  4. On 27 September the LA were informed by the Lenworth Clinic that as K was no longer placed in their catchment area they were referred to the CAMHS resource in the area of the new foster placement.
  5. The next LAC Review was on 5 December 2012. There is a repeated reference to a legal planning meeting on 25 June 2012. As regards the CAMHS referral there is reference to Ms A (the LAC Mental Health Specialist in CAMHS) requesting a meeting with the foster carer, which was still outstanding. The record notes ongoing concerns about K’s emotional well being, that she struggles in her relationship with M and M being unable to empathise with K and what she is going through. K has been ’emotionally and psychologically affected by her experiences’ and requires psychological support as soon as possible. The record of the meeting refers to the care plan, stating that the case is twin tracked ‘but the mother is clear that she could not care for her daughter and will therefore not consider rehabilitation home. Given the situation, the local authority needs to pursue long-term plans for [K]‘. M does not sign these minutes.
  6. In April 2013 there is a letter from Ms A to the LA setting out the CAMHS meeting with the foster carer and the social workers. It is accepted by Ms King, for the LA, that K was not present.
  7. The LAC Review meeting on 16 May 2013 refers to the CAMHS meetings being with the foster carer, but then records K ‘has been emotionally and psychologically affected by her experiences. She is currently receiving psychological support via [Ms A] at CAMHS’, later on referring to Ms A as now ‘working with [foster carer] and [K] to advise on strategies to manage behaviours and support the placement’. The CAMHS referral has been noted to have been ‘actioned’. M does not sign the minutes, but is recorded as having been seen on 21 March.
  8. On 16 July 2013 there was an emergency breakdown of the foster placement, there was an alleged assault by K on the foster carer requiring a late night home visit by the LA.
  9. The LAC Review meeting on 5 September 2013 refers to K attending the meeting. The record notes there had been no updated core assessment, no life story or direct work done with K and that this had left her ‘confused and unclear why she could not remain in the care of her mother. This is further exacerbated by a younger half-sibling remaining in the care of [M].’ It continues ‘LA do not hold PR for [K] and no other family members have been identified. The LA needs to give further consideration to this given [K’s] young age and potential difficulties in the future if they do not hold PR…The LA have not been able to safeguard [K’s] emotional well being given the breakdown in placements and the fact that Permanency has not yet been achieved for her…She [K] has previously had intervention and support from CAMHS – it was unclear as to whether this is being offered at present….Legal: Section 20. LA will need to give this further consideration in view of securing stability and security for [K]’.
  10. In January 2014 there is a signed letter from M confirming her consent for the foster carer to sign for day trips abroad and emergency medical treatment. This is followed in February 2014 with a health consent form signed by M.
  11. There is a report from an educational psychologist, following a consultation with K on 6 November 2013 regarding her behaviour at school which is reported to have improved.
  12. Undated LAC Review minutes indicate a meeting took place in January 2014. There is reference to Ms A working with K in January 2013, which it is accepted is incorrect as no direct work was done with K. The minutes refer to Life Story work being started, but not completed. There is no entry in the box regarding consideration of any new legal orders. Under the section entitled ‘Is this the preferred placement option for this child/young person?’ it says ‘No’, when asked why, it states ‘It is preferred that [K] return to a Local Authority Foster Placement’, when asked about alternative plans it states ‘An assessment is being undertaken to fully identify [K’s] needs’.
  13. In May 2014 there is a letter from SM (Senior Systemic Psychotherapist CAMHS) to the social worker confirming the four professional meetings and their conclusion that ‘the uncertainty about her future is affecting [K’s] emotional well-being and since [the foster carer] is similarly unable to provide reassurance to [K] this is having an impact upon [K’s] attachment to the [foster carer] and the [foster carer’s] attachment to [K]. [the foster carer] must, by virtue of not knowing, withhold some aspects of ”normal’ family life as such as planning for the future. It could be that this is, in part, why [K] believes she may still return home, and why she has seemed confused in her thinking. Other issues notwithstanding, it would seem that [K] is positioned between two families and needs to know who she is going to live with long term. It must be borne in mind that multiple moves (such as have occurred for [K]) can only increase her sense of loss and reduce her hope that there is someone and somewhere she can feel safe and secure. It is not surprising that she displays very challenging behaviours, she must feel enraged and despairing.’
  14. At around this time M writes a letter to K, to explain why she can no longer care for her.
  15. In the LAC Review minutes for 18 June 2014 K is noted as attending. They note that the LA have not pursued to change the legal status for K as work was being undertaken with M and she is supporting the care plan. It notes that the social worker has ‘undertaken and completed much overdue life story work’ which M has supported so K has a clear message she is not returning home. Under ‘Legal’ the minutes record ‘[K] remains accommodated under s 20. Whilst Mum continues to give consent and work with the LA in care planning for [K] there are no indications to change this.’ In July 2014 M gave her consent for K to go on holiday with the foster carer. In another record of this meeting it notes ‘[K’s] emotional and physical behaviour continues to be of concern within the placement and this is felt to be due to the level of uncertainty she still has in regards to her placement due to being told she may be moving placements/is staying and the confusion this has caused her….a plan of permanency has not been agreed for the IFA placement due to Kent’s current policy on IFA placements..’.
  16. In September 2014 the foster placement broke down due to K’s disruptive behaviour and in October she moved to her fourth placement.
  17. At the LAC Review on 20 November 2014, which K attended, the minutes confirm that individual support from CAMHS has yet to be offered. As regards the care plan meeting the need for permanency it records ‘Yes – if stability of Placement is achieved. Consideration also needs to be given to [K’s] Legal Status which is s20 and has been since December 2011’. A little further on under ‘Legal’ it records ‘IRO has asked that LA give consideration as to how her Legal Status could be more secured.’ Under ‘Decisions and Recommendations’ the minutes note that the social worker is to request senior managers to write to CAMHS to secure appropriate level of service including a definite date for State of Mind Assessment. Also the social worker is to raise with managers K’s legal status and advise IRO of outcome. One record of this meeting refers to concerns about the increased use of restraint and sedatives in her previous foster placement, with no further reference to how this was dealt with or whether M was informed.
  18. A file note dated 7 December records discussions with the out of hours social worker. K had told the foster carer that ‘she could go back to her mum any time’. The record ends with the following ‘K needs to be spoken to urgently by her social worker tomorrow as she needs to feel validated and listened to and clearly needs an explanation about her current status in care and why she is not in her mother’s care. It seems she has some unrealistic expectations about return to her mother’.
  19. On 5 January 2015 there is an out of hours file note with the foster carer seeking to end the placement due to K’s behaviour. K moves to her fifth placement on 16 January.
  20. A file record on 18 March 2015 notes that CAMHS have not yet made any contact with the foster carer, although the school have made contact for K with another project.
  21. In around June 2015 the LA make a referral to Great Ormond Street CAMHS where they note K has ‘been passed around services for the last 18 months with no real support or assessment in place. The [LA] feel this in unacceptable for K and she needs a professional team to take responsibility for completing an assessment and putting a plan in place to address her needs’. The referral records it has the support of the service manager, Ms Ransley.
  22. K’s behaviour deteriorates again and the police are called. She moved to her sixth placement on 10 June 2015 for one night, before being placed with Mr and Mrs M her current carers on 11 June 2015. They are her seventh foster carer in four and a half years.
  23. The LAC Review minutes for the meeting on 7 July 2015 record the attendance of Ms Ransley and K and M’s apologies. The referral to GOSH is noted. Under ‘Legal’ it records ‘[K] remains accommodated under s20. Discussions have been ongoing outside of the CIC Reviews with LA regarding this. NB Subsequent to this Review Service manager advised via email that Care Proceedings will be filed in first week of September’.
  24. A psychological report dated 6 August 2015 details the number of moves K has had and recommends a referral to GOSH, which had already taken place.

 

 

This is very tricky. On the one hand, this child was clearly uncertain about her future and getting very mixed up by it. On the other hand, the Local Authority had a mother who was genuinely consenting to the child being in foster care and accepting that she was not able to care for her. There’s at least an argument that in keeping this outside of care proceedings, although the length of s20 was unusual, the LA were observing the least interventionist approach which is the spirit of the Children Act 1989. Bear in mind that the Court can only make an order if it is better for the child than not making one, and here we had a mother who was working with the Local Authority and in agreement with the foster placement and accepting that she could not resume care of K.  I can understand the LA doubt about whether an application for a Care Order could have resulted in a Care Order being made, given that mum was working with the LA and giving valid s20 consent.   It is the unusual position of it really being the child who was unhappy with the s20 rather than the parent.

 

It was the Guardian, on behalf of K, making the Human Rights Act claim. Here are the Guardian’s arguments as to why there was a breach of K’s human rights.

  1. On behalf of K it is submitted that when K was received into care in 2011, at the behest of the LA, they were already aware from their own core assessment in April 2011 of her considerable difficulties in her relationship with her mother, and that she may need some intervention from the primary mental health team. Despite this knowledge in their own assessment the LA failed to;
    1. (i) Update her core assessment for over 2 years, despite repeated recommendations at LAC Reviews to do so.

(ii) Seek a psychological assessment of K’s family. The LA had recommended this should be done at a meeting in January 2005.

(iii) Seek a psychiatric or psychological assessment of K until 2015, despite that being recommended in LAC review meetings from March 2012. It is acknowledged she did see an educational psychologists in November 2013, but this concerned her behaviour at school. Some of the LAC reviews appeared to proceed on the basis that she was seeing someone from CAMHS, but the report dated 6 August 2015 from the trainee psychologist VT makes it clear she had not met K.

(iv) Life story work, although repeatedly recommended in LAC reviews did not start until over 2 years after she was received into care.

  1. In her statement the Guardian deals with the lack of assessment in the following way; ‘If such an assessment was sought many years ago work could have been done on the mother/child relationship which may have prevented the need for [K’s] permanent accommodation. In any event work could have been carried out on attachment and behavioural issues and therapeutic intervention could have assisted [K’s] development which suffered by this not happening…This is an assessment that the LA could have commissioned itself, if CAMHS would not agree to undertake it’. Mr Hall rejects any suggestion in the LA evidence that they recognise, with the benefit of hindsight, they may have acted differently. He submits the need for assessment was obvious from the time K was placed with foster carers in 2011. K’s attachment difficulties with her mother needed urgent assessment, and then effective support put in place. That was repeatedly recommended, but not done.
  2. Turning to his second heading, Mr Hall recognises that it is inter-linked with the failure to assess. In the record of the LAC review meeting on 5 September 2013 the LA candidly recognise they have ‘..not been able to safeguard [K’s] emotional wellbeing given the breakdown of placements and fact that permanency has not been achieved for her.’
  3. There have been 7 placement breakdowns, often at short notice and in upsetting and distressing circumstances for K. The records have many references to the extent the placement breakdowns have caused K emotional harm. In their referral for a psychological report in 2014, some three years after K has been in the LA’s care, the reason for a different picture at school emerged. As the record of the meeting notes ‘…[K] has learnt to cope by withdrawing emotionally and functioning independently whilst maintaining control over her environment. This works well at school and when she first enters into a new placement. However, this coping strategy breaks down at home as she starts to settle and get close to the foster carer…’ To illustrate this Mr Hall relies on the report to the LA review in January 2014 concerning K’s third foster placement with Mr and Mrs T. The social work report for the review notes that K was happy and beginning to form an attachment to the foster carer, but as it was an agency placement the LA, as a matter of policy, were unable to sanction this placement as a long term placement. The report notes that this lack of certainty in the placement was impacting on K’s emotional well-being. This view was endorsed in a letter dated 15 May 2014 from CAMHS and it went further in stating ‘It must be borne in mind that multiple moves (such as have occurred for [K]) can only increase her sense of loss and reduce her hope that there is someone and somewhere she can feel safe and secure. It is not surprising she displays very challenging behaviours, she must feel enraged and despairing.’
  4. Between December 2011 and February 2016 Mr Hall submits the LA have not ensured K has received appropriate therapy; had they done so the Guardian considers K’s family life is likely to have been very different. At the LAC review on 4 February 2015 it was recorded ‘…It is imperative that therapeutic support is offered to [K] to enable her to become more stabilised to reduce the risk of further placement breakdowns’.
  5. Under the third heading, the failure of the LA to issue court proceedings, Mr Hall also recognises is linked to the first two. He submits on the LA’s own records K suffered from instability from spending so long in foster care, with only her mother having parental responsibility and no clear direction. K’s current social worker Ms A sets out in her statement in support of these proceedings ‘It is envisaged that a care order will also support [K] in terms of feelings of security and stability, as she has historically struggled to understand the decisions made by her mother, and therefore she will know that there will be a level of oversight to her care planning’.
  6. Mr Hall submits if proceedings had been issued there is every likelihood they would have made a difference. The repeated failures by the LA to follow through their own decisions would have been subject to effective scrutiny, by the guardian, her legal representative and the court. The issue was repeatedly flagged up by the LA from March 2012, but not followed through. Had K been represented in court proceedings, there would have been proper oversight, the plans would not have been allowed to drift and assessments would have been undertaken when required. Whilst K’s mother did not raise any complaints at the time about how K was cared for by the LA, she had not been able to provide consistent and predictable care for K before 2011, K’s mother had her own mental health difficulties, she was inconsistent in her attendance at LAC reviews and her contact was gradually reduced to the extent she was only seeing K once during each school holiday. Mr Hall submits it is difficult to see how she could be regarded as someone who was proactively exercising her parental responsibility in relation to K.
  7. As regards any suggestion by the LA that s 20 is not time limited and/or is not always a prelude to care proceedings Mr Hall submits the LA’s own records point in the other direction. In particular,
    1. (i) On 12 September 2012 the LAC review records that a legal planning meeting needs to be pursued with regard to care proceedings noting ‘care proceedings to be pursued in order to give this child some stability’ and long-term placement’.

(ii) On 16 May 2013 the LAC review records that the LA are to review current legal status within next 3 working weeks and advise IRO of outcome.

(iii) 5 months later on 5th September 2013 the records note the LA does not hold PR for K and ‘the LA needs to give further consideration to this given [K’s] young age and potential difficulties in the future if they do not have PR…the LA have not been able to safeguard [K’s] emotional wellbeing given the breakdown of the placements and the fact that permanency has not been achieved for her’.

(iv) 14 months later on 20 November 2014 the LAC review notes ‘IRO has asked that LA give consideration as to how her legal status could be more secured…Sally to raise with managers [K’s] legal status and advise IRO of outcome’.

(v) 4 months later on 4 February 2015 the LAC review records similar concerns being expressed by the IRO as to K’s legal status.

  1. The LA issued care proceedings on 16 November 2015. Mr Hall submits the fact that care proceedings were finally issued conclusively responds to any suggestion by the LA as to their necessity. Otherwise, he asks rhetorically, why did they issue them? He submits that the failure to issue the proceedings soon after K was placed in care has denied K the opportunity to be properly assessed and access appropriate support at a much earlier stage as, he submits, it would be inconceivable that a court would have permitted care plans to be made without a proper assessment of K’s needs. As a result K has lost the opportunity to have the input of a Guardian, a legal representative and planning for her care to be properly and robustly based on sound assessment.
  2. Mr Hall submits the detrimental effect on K of the LA’s failure to secure emotional, practical and legal stability for her is clear from the LA records and the Guardian’s evidence.

 

The point here on the delay in issuing care proceedings that it is not merely the making of a Care Order that is achieved within care proceedings – having judicial and Guardian scrutiny of the care PLANS is a vital part of the process and if this had happened, K would have had a better care plan much sooner and suffered less disruption and harm in care.  The journey through care proceedings, says the Guardian, is just as significant as the ultimate destination.

 

What did the LA say?

 

  1. Ms King on behalf of the LA does not dispute the LA records. She submits there is no issue about the validity of the consent given by K’s mother, either at the start or during K’s placement with foster carers. She submits neither statute nor any guidance stipulate s 20 is a short term measure only. In this case, unlike the reported cases, there was not any dispute about the LA’s care plan for K. So, she submits, the starting point is very different and distinguishes this case on the facts.
  2. Ms King submits the documents show there was considerable involvement by K’s mother, such as the number of written consents provided by her for the foster carers to sign forms for her, the letter she wrote to K about why she was placed with foster carers. The submission on behalf of K that they should have issued care proceedings earlier does not amount to a breach of her article 6 and 8 rights.
  3. She submits there is no evidence of a failure to plan for permanency in that the LA investigated the options with the family first, when this was not possible their plan for K was to be placed with long term foster carers. They acknowledge the high number of placements, but state being within care proceedings was unlikely to have made any difference to the efforts made by the LA to secure a permanent placement. Ms Ransley, the service manager for the area at the relevant time, states ‘Providing children with stability within foster care is often a challenge (this is irrespective of their legal status) and this sadly was the theme for [K]. [K] experienced numerous foster care breakdowns within both the in house provision and the commissioned private foster care sector, which is regrettable but not unusual within a care system which operates a 30 per cent disruption rate. Finding the right match where it clicks, can often evade even the most meticulous professional.’ Ms King submits no link has been established that the situation would have been any different if care proceedings had been issued earlier than they were.
  4. Ms King refutes the submission that the LA failed to assess and/or provide therapeutic support for K. She submits the papers demonstrate the appropriate referrals were made to CAMHS but CAMHS concluded they should provide a service to the carers, not directly with K until she was settled in her placement. Whilst Ms Ransley in her statement acknowledges the LA’s frustration with the position taken by CAMHS that is the service provided to meet the mental health needs for children by the NHS, which is what the LA commissions for children in their care. Ms King relies on the fact that the Guardian has not sought an independent assessment within these proceedings.
  5. Ms King submits the submission on behalf of K that as a result of the LA breaches K’s welfare has been harmed, is speculative. Given the harm K suffered prior to coming into care and the extent to which that has been the root cause of her placement breakdowns and the uncertainty over CAMHS support due to placement uncertainty, such harm as might be found proved cannot be attributed directly to the failings of the LA to the extent of a breach of K’s article 6 and 8 rights.
  6. Finally, Ms King submits K’s mother has exercised her PR in a way regarding K’s accommodation that was and is consistent with her welfare. There were no alternative carers for her and K had an IRO. Ms King states in her written skeleton argument ‘Whilst the LA accept that it is better for [K] that a care order is made so that her position as a child in care is formalised by way of an order which signals permanency and confers PR onto the LA, none of those advantages mean the LA has acted unlawfully and/or breached [K’s] Article 6 rights. Her mother exercised her PR in a free and informed manner. Her mother decided that [K] was best looked after by the LA. She was entitled to take that decision and the LA was entitled to act on it’.

 

I think that those are good points – somewhat weakened by the number of placements and the child being at times sedated in care, which is a very unusual set of circumstances, but on the whole, the Local Authority had a decision to make as to whether care proceedings would achieve something for the child that could not be achieved without it.  I have certainly had cases (with the child not having such a bumpy ride in care) where with an adolescent in a settled foster placement I have advised against care proceedings where the parents are giving long-term and capacitous section 20 consent with no prevarication.  For a significant part of that four year period,

We know from the headline though that the LA lost here, so let us cut to the chase.

 

Discussion and decision

  1. There is some force in the submission made by Ms King that the facts in this case are different than those in many of the reported cases concerning the misuse of s20. A common feature of those cases was an issue over the parent’s consent to their child being accommodated and the lack of agreement with the care plan; neither of those matters featured in this case.
  2. Ms King builds on that position as, whilst acknowledging what the President said in Re N (ibid) about s 20 having a role as a short term measure, she seeks to rely on the fact that there is nothing specific in the section, or guidance, to found that view.
  3. The difficulty with Ms King’s position is that the documents produced by the LA paint a picture of
    1. (i) A mother who has to a large extent abdicated her parental responsibility to the LA. Whilst she has some involvement in the decision making after K is placed with foster carers, the fact that she doesn’t seek to challenge the LA inactions in the context of what is taking place demonstrates her inability to exercise her parental responsibility proactively for the benefit of K.

(ii) The LA on the documents decided repeatedly there should be a further/updated core assessment, mental health assessment/therapeutic support and legal advice about K’s status; but the same documents demonstrate repeated failures to follow through these decisions.

(iii) Repeated and worsening placement breakdowns, which were deeply damaging to K’s emotional well-being.

  1. Whilst there is no time limit on providing s 20 accommodation in the statute, each case has to be considered on its own facts, with active consideration being given as to whether proceedings should be issued. In this case care proceedings would have helped significantly to provide the stability and security that K so clearly needed. K would have had the benefit of a guardian and legal representative to give her an effective voice regarding the LA failures and enabled the LA to share PR with M. As the LA accepted in the middle of 2015 K had been ‘passed around services for the last 18 months with no real support or assessment in place’. This is hardly a ringing endorsement by the LA of their own care planning for K.
  2. A common thread in the records is the harm being caused to K by the lack of security and stability any of her placements (other than the current one) were able to offer her. The evidence demonstrates K was acutely aware that her mother could remove her at any time.
  3. I am satisfied that the LA have acted unlawfully, in my judgment their actions have been incompatible with K’s article 8 and 6 rights. I have reached that conclusion for the following reasons:
  1. (1) The failure by the LA over a period of over three years to conduct or update the core assessment done in April 2011 meant the LA had not properly assessed K’s needs during the period she was placed with them from December 2011 to November 2015 to provide a secure foundation for care planning for her, in order to protect her article 8 right to family life. The care plan for long term fostering lacked any detailed foundation that such an assessment would have given it.

(2) The LA’s failure to secure appropriate mental health assessments and/or therapeutic support meant her continued placement breakdowns over that period were unsupported. Reliance on inconsistent CAMHS referrals together with the repeated misunderstanding of what CAMHS support was being provided permeated the decision making and the delay in seeking an assessment until 2015, when a referral was made to GOSH. This all contributed to the increased risk of repeated placement breakdown.

(3) The suggestion that the LA were not able to commission independent private providers on an ad hoc basis does not stand up to scrutiny. In her statement Ms Ransley states ‘Commissioning independent, private providers on an ad hoc basis does not happen. Local Authorities only generally fund these types of arrangements within care proceedings’. Yet this is what the LA did when they made a referral to GOSH in July 2015, prior to issuing proceedings. No explanation is given as to why this could not have been done earlier, other than an acknowledgement in Ms Ransley’s statement that ‘this should have happened sooner with hindsight.’

(4) The repeated failure by the LA to act on its own decisions for over three years to seek legal advice to secure K’s legal position, including consideration of the issue of proceedings and the advantages that would bring for K, together with the LA having PR through a care order. On their own admission in the evidence the LA filed in 2015 in support of the care proceedings, a care order would provide the stability that K clearly required. The delay of over three years in doing so is not justified in any way. That delay meant K was denied access to an independent guardian and her own legal representation, in circumstances where the LA were not implementing their own decisions about her and the only person with PR was not exercising it in a proactive way. K’s article 6 and 8 rights were compromised by this significant delay.

(5) Whilst K’s mother was entitled to exercise her PR for K in the way she did, that does not absolve the LA from actively considering whether it should secure its legal position in relation to the child concerned. Here K’s mother was, at most, after November 2011 reactive rather than proactive in exercising her PR. She responded to requests from the LA and attended some, but not all, meetings. Probably due to her own vulnerabilities she was not in a position to challenge the actions, or inaction, by the LA in relation to K.

(6) Reliance by the LA on the unlimited term of s 20 simply cannot be justified in a factual vacuum. The circumstances in this case demanded for K’s article 8 and 6 rights to be protected, for the LA to secure their legal position regarding K. The LA’s own records repeatedly make decisions of the need to get such advice, those decisions were repeatedly not acted on and when they were care proceedings were issued, nearly three and a half years after they should have been. It is unattractive for the LA to now submit that there was no obligation on them to issue such proceedings. The President’s words in Re N (ibid) could not be clearer.

(7) I am satisfied that if proceedings had been issued earlier the assessments that the LA failed to do are more likely to have been ordered by the court. Reliance by the LA on the fact that within these proceedings the Guardian has not sought any further assessment is a realistic recognition by her of the current position, that with a settled placement and a report from GOSH further assessment is not justified. That does not absolve the LA from responsibility of its failure to issue proceedings earlier, as it should have done, over three years ago.

(8) I agree that in considering this application the court should guard against making decisions with the benefit of hindsight. In her statement Ms Ransley observes ‘With the benefit of hindsight criticism can be formulated. Is the service and support provided to [K] optimal, [K] has been given what all children in care are, but for [K] like 30 percent of young people, her experience has been sub-optimal due to issues inherent in the care system. These issues are experienced by children subject to an order and those who are not.’ What this does not acknowledge are the facts of this case; the unacceptable delay in issuing proceedings, the consequent uncertainty which increased the risk of placement breakdown and the failure to properly assess and support K.

 

The Judge assessed the appropriate level of damages for K as being £17,500.

 

Statutory charge

 

The statutory charge is not very exciting, but I need to talk about it here, because it is important. The statutory charge is the term given where as a result of  free legal representation, someone obtains money through a Court order, and has to use that money to repay the cost of their legal aid. It usually occurs in divorce, and makes a lot of sense. If someone racks up a legal aid bill of £20,000 and as a result of their divorce gets £250,000 it makes perfect sense that the legal aid should be repaid out of that money, rather than the taxpayer footing the bill.

Up until fairly recently, this didn’t affect people in care proceedings. Legal aid for care proceedings is non-means non-merit  (which means that even a millionaire would be entitled to free legal advice and representation) and parents didn’t get any money back at the end.  But now that Human Rights compensation for bad behaviour by a Local Authority is a thing, the change to the Statutory Charge which means that it applies to such compensation is a big deal.

£17,500 of compensation for K is a decent amount of money, and intended to be compensation for what she has gone through in her life as a result of the human rights breaches the Court has found. But before she gets any of that money, she has to pay back the legal aid agency for the cost of her care proceedings AND the cost of her human rights claim.  That’s probably going to leave her with nothing.

Many of us were hoping that you could box off the human rights claim separately, which would be much less, and possibly an amount of money that the Court might order the Local Authority to pay. A human rights claim probably costs about £2,000, compared to the £10-20,000 of care proceedings  (remember that the legal aid bill covers barrister’s fees and expert fees too).

So, here are the options that the Court has :-

  1. Make no orders about costs, and know that almost the entire compensation package goes to the legal aid agency rather than the child or the parents.  Michael Gove is the person who benefits, not the person who actually suffered the human rights breaches.
  2. Make an order that the Local Authority pay the costs of the care proceedings AND the human rights claim. That means that the LA are paying out double the amount of compensation. It also makes it difficult to fit with the Supreme Court’s decision on costs in care proceedings, which are that there shouldn’t be costs orders unless the LA’s conduct WITHIN the proceedings has been egregiously bad. The conduct here is BEFORE the care proceedings, so there’s a strong chance that the LA would appeal. That racks up the costs even more, potentially swallowing up ALL the compensation, since really only the Supreme Court can decide how this affects their previous decisions.
  3. Make an order that the LA pay the costs of the human rights act claim. That’s a well-founded costs order and doesn’t cause legal problems. However, it is a small amount compared to the costs of the care proceedings, and may still end up with the child getting only a small amount of compensation.

 

 

The Judge in this case took the third option.

Costs

  1. Mr Hall seeks an order for the LA to pay the costs of the proceedings. He submits the HRA claim has succeeded, the court should be mindful of the impact of the statutory charge and in the circumstances of the case the court should make an order for the LA to pay the cost of the proceedings.
  2. Ms King resists this application. She submits the court should not depart from the general position in family cases that costs are not usually awarded in family proceedings (see Re S (A Child) [2015] UKSC 20 paras 15 and 29). She submits the LA have not taken an unreasonable stance. In any event, the LA should not be responsible for the cost of the proceedings, merely as a device to avoid the full impact of the statutory charge. She submits there are discrete costs concerning the HRA application.
  3. I recognise the financial pressures on the LA and that it is unusual for the court to make a costs order in care proceedings. Against that I have determined that the HRA claim succeeds, I rejected the submissions of the LA and made an award of damages. In the circumstances of this case, where the breaches continued for such a long period of time, I have reached the conclusion the LA should pay K’s costs of the HRA application only, but which will include the full costs of the hearing on 29 March 2016, as the only reason that hearing could not proceed was due to the late disclosure by the LA on that day of relevant documents. I will make no order for costs as between M and the LA.

 

 

 

I do have a fourth solution, but it is hard to use when a human rights act claim has already actually been made. Effectively, if a lawyer believes that the client has had their human rights breached and that compensation might be payable, they open up a brand new pro bono file. This is kept ENTIRELY separate from the care proceedings. Ideally another lawyer deals with the case so there’s no overlap at all.  Not a penny of publicly funded/legal aid money is spent on that file, so any compensation achieved is nothing to do with legal aid at all. The money would only go to legal aid if the care proceedings ended with a “Lottery order” about costs (that’s an order that says in effect, K had free legal aid and would only have to pay for it if she came into a huge sum of money, say a lottery win. These are NEVER made in care proceedings, because legal aid for them is non-means, non-merit – even a millionaire qualifies)

Ideally, under this pro bono file, the lawyer writes to the LA a pre-action protocol letter setting out the alleged breach and giving a figure that their client would be prepared to settle for. If the case settles, the costs are minimal and could be bundled into the settlement. The client gets the money, the lawyer gets paid for the work they’ve done, the LA don’t incur a costs order of tens of thousands.  If the case doesn’t settle, the lawyer has to decide whether to run it as effectively no-win no-fee, or to make an application for public funding knowing that the stat charge will bite on their client.

None of this should be necessary BECAUSE the Statutory Charge just plain and simple should not apply to human rights compensation cases, and particularly not to ones that arose out of care proceedings. Making someone pay out of their compensation for care proceedings that a millionaire would have got for free, and they only have to pay a penny BECAUSE their human rights were breached is just plain unfair and wrong. I don’t see that changing until the Press get outraged about the unfairness of it  or Michael Gove gets JR-ed on it.  Or perhaps a LA appeals a costs order for the entireity of the costs and the Minister gets added as an intervenor on the appeal.

 

 

*Addendum, solution number 5.

 

Judge smiles very clearly and obviously at counsel who had been making the HRA claim and invites them to withdraw it. If so, delivers judgment and says within it that IF had been asked would have found breaches and IF asked about quantum, would have said £x. Pauses after judgment, gives parties a small adjournment for discussions to see if any applications need to be made arising from the judgment, or whether for example an offer might be made an accepted. If Judge told that nothing arising, simply makes no order for costs. Stat charge doesn’t bite because no order for compensation made, and any compensation was achieved in that short adjournment for which nobody charges the Legal Aid Agency a penny for their time. If Judge is told that an application to revive the HR claim is made, then so be it, the LA will likely feel the full force of a costs order because they were too dumb to take a hint.

Unlawful removal of a child, compensation paid

 

Her Honour Rowe QC considered this case, where a Local Authority removed a child and placed the child in foster care when at the time, the mother knew nothing about it.  It is a decision by a Circuit Judge and thus not any new binding law, but it is interesting and potentially important nonetheless.

 

Re AS (unlawful removal of a child) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B150.html

In this case, both the mother and father had mental health problems. On the 9th October 2014, the mother suffered a significant episode of mental ill-health. She arranged for a neighbour to look after her son who was aged 9, and to take him to school. She called an ambulance to take her to hospital.

She was admitted to hospital and was detained under section 2 of the Mental Health Act.  She was not told until 16th October by letter (!) that Brent had removed her son from the care of the neighbour, whom they considered unsuitable on 9th October, using section 20 of the Children Act 1989.

Brent issued care proceedings on 11th November, and an ICO was made on 13th November 2014.  The child was thus in foster care on “section 20” from 9th October to 13th November, although mother had not consented, had not been asked to consent, and for at least some part of that time would not have had the capacity to consent.

It was not really in dispute that if Brent had sought an EPO or ICO at that time that the Court would have made one, the dispute was whether they had the legal authority to keep the child in foster care without an informed and capacitous consent from mother.

 

The argument from Brent hinged around the wording of section 20 (1) (c)

 

20 Provision of accommodation for children: general.

(1)Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of—

(a)there being no person who has parental responsibility for him;

(b)his being lost or having been abandoned; or

(c)the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.

And on a technical basis, they might be said to be right. The Act itself never mentions a parent consenting to section 20.  The latter passages of section 20 make it plain that the LA cannot provide a child with section 20 accommodation if a parent with Parental Responsibility OBJECTS.  In practice therefore, most Local Authorities would seek the parents consent and for the parent to sign a consent form.  Brent’s argument here was that they didn’t need a consent, they just needed the absence of an objection. There was no objection, therefore the child was validly accommodated under s20(1)(c)

 And on the bare words of the statute, they are right.  However,  it would be a really technical defence to run, and it is not very surprising to me that it did not succeed.  If mum wasn’t asked or told, how could she object? She didn’t know it was happening. And if she HAD objected, Brent could have argued that she didn’t have capacity to object.

There’s quite a big difference between getting someone’s consent, and saying that something is okay because they didn’t object. Especially if they didn’t know.  It is a bit like being ten and saying “Well, mum didn’t tell me that I COULDN’T eat nine Penguin bisuits whilst she was upstairs”

OR

If for example, I have the opportunity for a canoodle with Keira Knightley, I would not expect to be able to tell Mrs Suesspicious Minds that it was perfectly fine because she had not explictly objected to my doing it.  Particularly if I didn’t tell her in advance that it was a possibility, thus giving her the chance to object.  I think that Mrs Suesspicious Minds would be absolutely entitled to take the view that this is the sort of thing that I’d need to raise in advance and that only with her explicit consent (which would not be forthcoming) would it be okay.  [I’d best make it plain that this is an illustrative hypothetical example only, and that I would never put myself in this situation. Not with Keira Knightley.  With Rachel Weisz?  No, I still wouldn’t. Honestly. ]

24. …I accept that the removal of AS took place in good faith and that removal would almost certainly have been sanctioned by the court had the local authority applied for an EPO, however for the reasons that follow I conclude that the removal was unlawful.

  1. The removal of a child from his parents by a local authority is a fundamental interference with the right of the parents and child to family life, and can only be carried out if the removal is “in accordance with the law”. The framework for the removal of a child is set out in the CA 1989, and with apologies as the principles are so well established I have set them out above.
  2. Both Hedley J and Munby J, as he then was, said clearly in the cases cited above that in the absence of consent, a child can be removed only in the circumstances set out in s38, s44 or s46 CA 1989. These provisions appear under Part IV and Part V, CA 1989. Each provision contains stringent safeguards intended to ensure that a removal is lawful. In particular: a. Each section refers to the s31 threshold criteria, requiring either that there are reasonable grounds to believe that the threshold criteria are met or, in relation to emergency provisions, that there is reasonable cause to so believe;b. Whilst removal under s46 (police protection) does not require prior judicial approval, the power to remove is strictly time limited to a maximum period of 72 hours. The police are under a duty to notify both the relevant local authority and the parents as soon as practicable of the steps taken;c. Removal under either s38 or s44 requires prior judicial approval;d. Even with prior judicial approval, an emergency protection order is strictly time limited so that any longer term sanction for continued removal follows an application for a care order and a further appearance before the court where all parties can be represented, where a Children’s Guardian will have had time to make initial enquiries and where all parties will have had an opportunity to consider the relevant evidence and will be able to make full submissions to the court, which can hear evidence if necessary.
  3. The provision of accommodation for children by the local authority is dealt with in Part III which, as Hedley J confirmed, addresses “Support for Children and Families”. As already cited above, Hedley J made clear that the emphasis in this Part is on partnership and “involves no compulsory curtailment of parental rights“. Self evidently the whole of s20 falls within Part III, and Hedley J made no distinction between the provision of accommodation under s20(1) and the provision of accommodation under s20(4). His judgment referred throughout to s20 as a whole.
  4. In the case of R(G) v Nottingham City Council referred to above, the President re-emphasised the clear principle that save perhaps in exceptional wardship cases (where in any event a High Court Judge would need to give prior judicial authority) in the absence of the agreement of the parent, removal of a child could only be achieved by the statutory routes in ss38, 44 or 46. On the facts of the Nottingham case, the local authority plainly considered that the mother was prevented from providing her baby with suitable care, just as the London Borough of Brent considered that this mother was prevented from providing AS with suitable care. If Mr Poole were correct in his analysis of s20(1)(c), then Nottingham City Council would have been entitled lawfully to remove the baby under the same provision. The President concluded without hesitation that the removal was unlawful.
  5. s20(1)(c) contains no requirement for the threshold criteria under s31(2) CA 1989 to be satisfied on any basis, even reasonable cause. If Mr Poole were correct, then a local authority could, on its own assessment of whether a parent was prevented from “providing a child with suitable care”, remove that child without any reference at all to the threshold criteria. The parents would have no forum in which to contest that assessment, and there is no application open to them under the provisions of the 1989 Act to challenge the local authority and seek the return of their child. The child would have no Children’s Guardian. There would be no parameters for the position after removal, there would be no requirement for the local authority to apply to court and there would be no time limit on the duration of the removal. In short there would be no safeguards to mirror those that are expressly included in ss38, 44 and 46. It would seem perverse if a local authority could more easily remove children from their parents in cases where the threshold criteria were not necessarily met than in cases where there were reasonable grounds to conclude that they were met.
  6. There is no authority supporting the proposition advanced by the local authority in this case and, as I have already indicated, that proposition appears to be in direct contravention to the principles established in the cases relied on by the mother.
  7. Finally, the structure of s20 itself is, I conclude, inconsistent with the proposition that parental consent is required where a local authority is acting under s20(4) but is not required where the local authority is acting under s20(1)(c). s20(7) prevents a local authority from accommodating a child if a parent objects and s20(8) permits anyone with parental responsibility to remove a child from accommodation. The important point is that both of these provisions apply to accommodation under “this section” ie s20 as a whole; they do not distinguish between accommodation under s20(1)(c) and s20(4).
  8. For all of these reasons I find that the removal of AS from his mother was unlawful. I therefore do not need to go on to consider whether the removal was “necessary” and therefore in accordance with Article 8(2) ECHR].

[I think that I’d probably distinguish the Nottingham case – in that case, mum DID know that the baby was being removed and she DID object. So clearly the social workers in the Nottingham case couldn’t have been using s20(1) (c) as a legal basis for removal. Nevertheless, THIS Court has found that s20(1) (c) requres active capacitious parental consent, not mertely the absence of an objection]

The question then arises about delay in issuing proceedings

If I find, as I have, that the removal of AS was unlawful, I am then asked to find that the local authority failed to issue proceedings in a timely manner, in breach of the mother’s Article 6 ECHR rights. Since the initial removal of AS was unlawful, it follows that until the local authority issued proceedings on 11 November 2014 and secured judicial approval for continued separation on 13 November 2014, AS was being kept separate from his mother unlawfully. The local authority did not issue proceedings in a timely manner. I was unable to understand the reason for this delay, especially given that at the legal planning meeting held on 13 October 2014 the local authority decided to issue care proceedings and the application itself, though issued only on 11 November 2014 was actually dated 7 October 2014.

The LA were ordered to pay £3,000 in compensation and £750 in costs.

The LA did try to escape compensation by saying that the declaration that they had breached mother’s human rights and their apology was sufficient. Sadly for them, they had tried one of those “modern” apologies, where the person says “I’m sorry that X made you feel bad” rather than “I’m sorry that I did X, that was wrong of me”

  1. The local authority reassured the court that it had at all times acted and will continue to act in good faith and with AS’s best interests at heart; no party suggested otherwise. Further the local authority submits that if I do find a breach, then the making of declarations together with the local authority’s apology to the mother together amount to just satisfaction. The local authority resists any award of damages or costs.
  2. For the mother, Miss James points to the terms of the apology and submits that it is not really an apology. The local authority, in counsel’s position statement, says “the Local Authority does not accept that its actions breached the mother or AS’s article 6 or 8 rights…The Local Authority offers a sincere apology to the mother for any upset that she feels LB Brent has caused her.” Miss James makes, I find, a good point. Miss James further makes clear the fact that the mother did not bring these proceedings for financial reasons; she was and has throughout remained upset and distressed about the manner of AS’s removal and she wants to make sure that this could not happen again to another child.

 

 

I think I might have tried another line – I’m not sure it would have worked either, but I would have considered it. On 9th October, the LA or any other LA, could have had no idea whether mum might be suffering from a really short episode of ill-health and be home the next day, or whether she might be ill for six weeks or more.  As they wouldn’t be able to rely on mum having capacity to sign a s20 consent  (pace Hedley J’s decision) and they can’t rely on s20 (1) (c) if the Judge is right here, that puts any LA where a mother has an episode of mental ill-health which might mean them being hospitalised in a position where they HAVE to seek an EPO / ICO.  That might in itself not be a terribly healthy thing for mum to hear at a time when she is getting treatment, and might wildly escalate a situation which could, after all, have been resolved the very next day with mum getting discharged with a change in medication.

 

The ultimate thrust of this judicial decision is to drive LA’s to issue care proceedings the moment that a mother or father providing care for a child is taken to hospital or has an episode of florid behaviour.  That might led to a number of care proceedings being issued prematurely, and also to a situation where mothers feel undermined and criticised by professionals just at a time when they need support and a working relationship.

You might say that making use of s20(1) (c) as a very short term holding position so that the child can be cared for whilst it is established whether the episode of mental ill-health is very short-lived and can be stabilised in a day or two, might be much more illustrative of working in partnership than dashing off to Court at a time when mother is unwell, stressed and anxious and where she won’t have capacity to instruct someone to fight the case, won’t have an Official Solicitor to represent her, may not actually be allowed by the hospital to be present and will be told that a Court are ruling that she presents a risk to her child EVEN THOUGH she has recognised that she is unwell and asked for help.

 

(I’d have to concede that in this particular case there are some major problems with that argument…firstly taking the child away from a neighbour who mum has asked to care for the child and who is willing to do it doesn’t really help my argument here, and secondly that NOT TELLING mum for a week doesn’t help in the slightest.  I’d mean more in cases where no alternative care provision has been made and mum is told immediately or as soon as practicable. )

 

But ultimately the Court interpreting that s20 (1) (c) requires active parental consent also puts LA’s in a position where they’d have to go to Court for a parent who is in a road-traffic accident and who is in a coma. The child can’t be accommodated under s20 (1) (c), the parent can’t consent. If the parent hasn’t got someone else who steps in to look after the child, how does this work?   You couldn’t conceivably argue that the child is at risk of harm from the parent, but what are you going to do?   [Accommodate, and take the chance of being sued afterwards is probably the answer]

Bad week for Gloucestershire continues to get worse

I wrote on Wednesday about Gloucestershire social workers getting a hard time from His Honour Judge Wildblood QC, and it is only Friday and they are getting another. For many of the same issues

 

 

C1 and C2 (Children :Section 20 of the Children Act) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B149.html

 

  1. This is the third case that I have seen this week where this Local Authority has allowed there to be protracted use of the accommodation of children under section 20 of The Children Act 1989. Without descending into full legal analysis of the statute ‘section 20 accommodation’ arises when a parent agrees that a Local Authority should arrange where a child is to live. With their mother’s agreement, therefore, the two children involved in this case went to live with foster carers in September 2013 and have remained with the same carers for over two years. In its own case summary the Local Authority says: ‘the Local Authority is aware that there has been delay in bringing this matter before the court and entirely accepts this is inappropriate and will attract judicial criticism’. It does.
  2. The one saving feature of this case is that the foster carers, through their dedication to these children, are now offering them a permanent home. However, initially, they were short-term carers for the children and there is still no certainty about where the children will live because, as yet, there is no agreement about the orders that will be made. It appears that the mother may agree to the children remaining with the foster carers. It also appears that the putative fathers may also agree to this. The guardian has proposed that there needs to be further assessment of the foster carers before orders are made (and I deal with that point later).
  3. The upshot is that, for two years, nobody has been able to tell these children where they will be living and that remains the current state of affairs. The only way that certainty can be achieved is by making court orders. For some inexplicable reason the Local Authority chose not to bring the case before the court until now.
  4. Over the past year I have i) met with this Local Authority on a number of occasions to discuss the issue of the protracted use of s 20 accommodation, ii) attended conferences in this area at which I have spoken on this issue, iii) issued newsletters where I have written about it, iv) placed judgments about it on the Bailii website, v) spoken to other judges and magistrates in this area all of whom seem to share my opinion and are also trying to combat what is happening and vi) raised the issue with the Local Family Justice Board.
  5. Where this type of very bad practice arises it is not possible for a judge to undo the past. The only thing that I can do, now, is to publish judgments where this occurs so that the public know what is being done in its name by this Local Authority in a bid to prevent other children experiencing the same procedures. The firm drive of the courts to deal with cases expeditiously in accordance with 32 of The Children Act 1989, as amended, (i.e. keeping cases to no more than a 26 week timetable) is of no benefit to the child if the delay during the overall period of state intervention remains the same because of procedures that are followed before the case is brought before the court.
  6. The effect of this type of procedure is not only that it is patently wrong from the point of view of the welfare of children and in the full spectrum of family difficulties that it creates for foster carers. It also means that limited resources and money are being taken up in a way that expedition would avoid. In the plainest possible language it takes much more time and money for a delayed procedure to be followed than an expeditious one. Inefficiency costs more than efficiency and takes up more time. It also means that the task of sorting out what is best for the children becomes even more complex than it would otherwise be with repeated episodes of crisis management.
  7. For these children not to know for two years where they will be living, who will be caring for them, where they will be going to school, with whom they can make friends and when decisions will be made about them is bound to have a profound effect on their emotional welfare. It is inevitable that the children form attachments to their current carers and do so without knowing whether those attachments will persist.
  8. The guardian says this in her initial assessment: ‘as a consequence of the significant delay to issuing these proceedings the two children have been deprived of having care that could be regarded by them as permanent. It is likely that this has had a significant impact upon the children’s ability to feel secure and this combined with the children’s early experiences had an impact on their personality development and attachment style. This I believe will impact upon their ability to regulate their emotions, feel secure and develop a sense of self-worth. They and any carer are likely to require support with this impact…the children were accommodated under section 20 on 2/9/2013. I am unable to evidence any reason or explanation for the delay in issuing proceedings’.
  9. Over the past two years when these children have sought comfort or reassurance about the future nobody will have been able to tell them what the future holds. In my experience schools do excellent jobs when this type of issue arises but the burden that this type arrangement places on teachers is immense – for instance, how can schools or nurseries protect the emotional welfare of children in these circumstances and what happens when there are discussions or projects at school about families, holidays or future plans?

 

 

[Also note, that despite a period of nearly two years in section 20 foster care  The putative father of the eldest child underwent DNA testing only yesterday ]

 

Powerful words.  The Judge here is quite right – the delay in section 20 cases coming before the Court is one that harms children.  The Government have tackled the delay that occurs within proceedings (firstly by the clause in the Children Act 1989 that specifically says that delay within proceedings is harmful to children and to be avoided if possible, and latterly by introducing the Children and Families Act 2014 to try to make care proceedings be resolved within 6 months).

 

The delay BEFORE proceedings are issued though, has not been tackled. It may even be that the introduction of the Children and Families Act actually made it worse – because there’s a relatively short space of time once the care proceedings start for the social worker to get absolutely everything done and the case can be finished, it can be tempting to not start the case until almost all of that is done. Which can mean, in a case where parents aren’t demanding the return of the child or their lawyer sending angry letters, that there’s delay for the child.

It may be that all that the Children and Families Act 26 week edict has done is “Shift the Drift” so that most of it happens before Court proceedings. Which is worse, because at least when the case is in Court, everyone has a lawyer and knows their rights and a Judge can control the timetable. Section 20 drift is a real problem.

 

Here, this was a case that was inevitably going to need care proceedings. The children were 3 years old and 15 months old when they came into foster care, and they came into foster care as a result of suspicious bruising.  And there was a background of concerns that went back to 2010. That was always likely to need to be resolved by a Court, and it was always the case that decisions needed to be made for these children quickly, so that wherever they were going to live permanently that could be done and the children settled.

It isn’t a problem that only happens in Gloucester, not by any stretch of the imagination. But Gloucester have a Judge who has realised the scope and nature of this problem and is going to express displeasure about it each and every time.

 

What would be some practical proposals, if one was to legislate to fix it?

 

Well, I would start with the requirement that any use of section 20 where the child is in care for more than a fortnight must go through the PLO procedure – that means the parents get sent a letter about the concerns and future plans and more importantly attend a meeting and get legal advice. That means that they will absolutely know that they have the right to remove the child from section 20 and can make the Local Authority ‘put up or shut up’ – either take the case to Court and persuade a Judge that the child needs to stay in foster care or to return the child.

Another helpful addition might be to incorporate into legislation that a Local Authority can’t take a section 20 consent given in September 2013 and be still relying on it in March 2015. What would be wrong with saying that section 20 consent must be obtained afresh after 20 days, then 3 months after that, and then every 6 months thereafter?   [That is the same timing as LAC reviews, and thus the IRO can be charged with establishing at the LAC review whether there is genuine and informed parental consent to the next period of section 20 accommodation, and if not the LA are to ‘put up or shut up’]

 

Could a Judge impose such stipulations on a Local Authority without legislation?   I don’t think that even the President would have such power by way of Practice Direction – those powers really only extend to what happens within care proceedings – a Judge can’t really fetter what a Local Authority can do before care proceedings are initiated.

 

An option available to parents is to make a claim under the Human Rights Act – as can be seen from the last blog, even if the section 20 consent is given freely and on an informed basis, there is the possibility of a claim on the basis that the State’s actions in using section 20 to keep the child in care rather than working actively on either rehabilitation or putting the matter before the Court are not proportionate.

 

[In the Hackney case in the last blog, the parents would have lost on the ‘proportionality’ argument based on the facts in that case, but the section 20 was only for two months, not nearly two years as here]

 

 

The other noteworthy element of this case was the Guardian’s tentative suggestion that there be a psychologist to assess the children. I wholeheartedly agree with the judicial approach here.

 

The guardian has suggested that she may seek an order for a psychological assessment of the attachment of the children to the foster carers; I have made it very plain that, having regard to the necessity test in Section 13 of The Children and Families Act 2014, I think it highly unlikely that I would make an order to that effect since the attachment between the children and the foster carers: a) is obvious; b) can be dealt with by evidence from schools, nurseries, health authorities, social workers and the guardian c) does not raise any evident psychological issues that could not easily be dealt with by the social worker and guardian. Further, by the time that a psychological report had been produced (e.g. in 3+ months time) and the case has come back to court the children would have been with the foster carers for at least two years and about four months so I cannot begin to imagine that psychological evidence would add anything to what was obvious about the attachment between the foster carers and the children by then.

 

 

I think I might be taking this to Bristol Family Court if I was cursed with having to do a section 20 drift case next week.

 

 

Your Honour, I represent the Local Authority. Did you get the exhibit to my position statement?

 

 

 

Couple win damages for Hackney keeping their children in care

 

[There are some VERY IMPORTANT rulings about section 20 in this judgment, which was in the High Court. Practitioners, particularly social workers or those who advise social workers are urged to read it in full. I will put a huge IMPORTANT flag on the key passages]

 

This story came to my attention via The Guardian

http://www.theguardian.com/uk-news/2015/sep/17/couple-win-damages-from-hackney-after-children-wrongly-kept-in-care

 

The bare bones of this story were that a Hackney family had eight children removed from their care by the police, that the main issue was home conditions that could be fixed very quickly, and that the parents successfully sued Hackney under a variety of methods (including the one that’s always popular Beneath the Line here with commenters, “misfeasance in public office” ) and won on the Human Rights Act part of the case, receiving £10,000 compensation each.

The report is good, clear and compelling, and accurate.   [The author has clearly read the judgment and quotes the Judge and captures the essence of the story]

 

That led me to the judgment, which was not in the Family Court but in the Chancery part of the High Court.

 

 

Williams and Another v London Borough of Hackney

http://www.bailii.org/ew/cases/EWHC/QB/2015/2629.html

 

  1. If ever there was a case illustrating the challenges that face children, parents, public authorities, and the courts when concerns are raised about the safety and welfare of children it is this. A relatively trivial incident on 5 July 2007, followed by an allegation made by a young child in potential trouble, led to the exposure of issues about the upbringing of a large family in respect of whom there had been no previous concerns. Eight children, including a young baby, were removed from their parents’ care and distributed to foster homes. A swift consideration of the welfare issues concluded that if some simple improvements were made to their home, the children could return home. Yet it was some 2 months before the children returned to their parents, after experiencing a variety of foster placements, some of which were of dubious quality. A criminal investigation led to a 20-count indictment against the parents, but in the end, 2 years later, no evidence was offered and the parents were acquitted. The parents’ complaints about the handling of their case by the defendants were considered in a complaints process over a period of nearly six years culminating in a final decision of the Local Government Ombudsman, issued on 22 April 2013. In spite of their complaints being upheld in part, and the exoneration of their character in the Crown Court, the claimants believe their grievances have not been properly addressed and therefore bring these proceedings, ending in this trial, eight years after this unfortunate incident started. Fortunately it is not my task to adjudicate on more than a small fraction of what has occurred, but the overall picture is not a happy one.
  2. The claimants bring this claim against the London Borough of Hackney [“Hackney”] in their own right, and not on behalf of any of their children. They accept that the authorities acted lawfully in the initial action of taking their children into foster care under the authority of what has been described as police protection order. However, they claim damages for what they say were the unlawful actions of the defendant authority and its officers in keeping the children of the claimants in authority controlled foster care after the expiry of the effect of the police order. The causes of action alleged are misfeasance in public office, breach of statutory duty, negligence, religious discrimination and breach of the parents’ Article 8 human rights. The defendant denies liability in any of these causes of action.

 

 

The next bit, which explains how the children came into care, does throw into the mix a brand new element, that there were concerns about physical abuse of the children, not just a dirty or untidy house

 

The claimants, John and Adenike Williams, have been married for 24 years. They have 8 children whose ages at the time of the matters about which they complain ranged from 8 months to 14 years. All the children lived at home, and no concerns were raised about the manner in which their parents were caring for them until one of them was arrested on suspicion of shoplifting on 5th July 2007. This child was said to have told the police that he had been beaten by his father with a belt, as an explanation for a bruise on his face. The police visited the family home and were of the opinion that it was not in a fit state to be accommodation for the children. They alerted the defendant to their concerns. The police also initiated a Police Protection Order under section 46 of the Children Act 1989, and the defendants made emergency arrangements to accommodate them in foster homes. The police order authorised these arrangements for 72 hours. On 6th July, in circumstances I will have to examine in some detail, the parents signed a form of agreement which the defendants assert authorised them to continue to accommodate the children away from their parents, an assertion the claimants dispute. The children did not in fact return to live with their parents until 11th September 2007. It is right to record at the outset of this judgment, that, although the claimants were eventually charged with various offences relating to their treatment of the children, following strong observations made by a Crown Court judge, no evidence was offered, and a not guilty verdict was entered on all the charges.

 

 

So, firstly, the period of time that the children spent in foster care, from 6th July 2007 until 11th September 2007, was purportedly under a written section 20 agreement.  That’s important, because obviously social workers themselves have no powers to remove children or keep them away from a parent. They can only do so if the parents agree (under section 20 of the Children Act 1989) or there is a Court order sanctioning this.

We will come later on to whether the parents had agreed section 20 accomodation (they disputed this)

 

Secondly, the physical injury and the allegation that father had hit the child with a belt.  I was interested to find this in the judgment:-

 

  1. On 5 July 2007 one of the Williams children was interviewed by the police. The child was reported said to have alleged that Mr Williams “regularly beats him and his siblings and had reported that [the child] had been beaten the previous evening as he had gone to the shop without his permission to buy some lollipops.” It was also reported that the child had attributed a mark below the eye to the father using a belt.
  2. The legality and justification, if any, for what was done following that report does not depend on whether the allegations made by the child were true but on the appropriateness of the reaction of the authorities to the potential risks to the children implicit in them. However the truth of the allegations of violence was put in issue.
  3. In examining the evidence before me it is important for me to bear in mind and record in this public judgment the conclusions which HH Judge Paul Kennedy reached in the Crown Court having examined the evidence before him in the criminal proceedings brought against the parents for assault, cruelty and child neglect. Having read the file, he urged the Crown to offer no evidence. In his remarks, made on 16 September 2008 he said this:These are persons of good character, who faced the quite enormous task of bringing up 8 young children in an overcrowded home. That they loved their children, that they wanted the best for them, that there were determined that the future held more for them than for what Mrs Williams described as “street kids” has never been in doubt and shines out from Mrs Williams’s interview. Whilst there is little doubt that conditions at home were chaotic, the Williams have accepted the help they were offered and, within a remarkably short time, have turned around a difficult and dangerous situation to one where all departments of Social Services are content and positive about the future.

    Following these observations no evidence was offered and the judge entered a verdict of Not Guilty on all counts.

  4. There was much evidence in these proceedings to confirm the view arrived at by the learned judge, and I am absolutely satisfied that Mr and Mrs Williams were loving parents who wanted only the best for their children. They had brought them up in what must have been challenging circumstances without reproach or concern until July 2007. Their anxiety and distress exhibited when they were separated from them, their reactions to the ordeals their children endured over the next few months, were as clear in their demeanour in the witness box in this hearing as they were from the contemporaneous documentation and the evidence of the two children who gave evidence. I have absolutely no doubt that the claimants were and remain loving and committed parents determined to do their best for all their children. Their sense of sadness at not being able to be reconciled with the child who made the allegations triggering the authorities’ concerns was palpable.
  5. Mr Williams denies that he beat his child as alleged in the police report. He told me that there was a troubled relationship with this child which, sadly, has never subsequently been repaired. He agreed that he did smack the children, but in the case of three of them on only a few occasions. In relation to the child who had made the allegation, Mr Williams said he had never smacked, or used a belt to smack, the child in the face. To my mind somewhat strangely, Mr Williams told me that he did not “recollect” punching this child in the face, an allegation made by this child to doctors in relation to a later incident in November 2009. In relation to a row that occurred in 2010 he said that he could not remember if the child had any resulting injuries, although he could not see any. He used similar expressions claiming a lack of memory on several occasions about incidents which appeared from his descriptions and the records of them to be dramatic. Of course to say something cannot be recollected can merely be a form of denial, but I sensed here that there was a degree of equivocation in Mr Williams’s answers. There was, however evidence before me that he did hit his children in the course of disciplining them. One of the adult children who gave evidence before me agreed that this was so. I was told by this witness that Mr Williams used a belt “sometimes but not always” if the children “really misbehaved, [were] really really bad”. The witness added, “sometimes he went a bit too far”. When I asked this witness what was meant by “misbehaving” in this context I was told this meant “arguing with mum, messing about outside or doing things repeatedly – that is when the belt came out“. Very much in favour of Mr and Mrs Williams is that whatever the nature of the discipline handed out certainly the two children who gave evidence clearly remained very close to their parents. There is no evidence that with the one exception described, any of the other children have a less close relationship.
  6. I am satisfied on the evidence before me that Mr Williams did administer what he believed to be justifiable discipline to his children, which included on occasion the use of a belt. It is distinctly possible that a belt was used on or shortly before 5 July, although the circumstances and the extent to which it was used cannot now be reliably established. The only relevance of these matters is that in the course of the involvement of the defendant’s officers with this family they would have seen an attitude towards discipline similar to that which I have seen in this court. It is this sort of factor which persuades me that the defendant was justified in considering that the allegations were evidence of a risk to the safety of the children which they could not ignore in determining whether to exercise their statutory powers. This is not in any way to contradict the very positive conclusions that both HH Judge Kennedy and I have reached about the general character of both claimants.

 

 

Whilst the Judge therefore found that these were loving parents who only wanted the best for their children, he did also find that the father had by way of  justifiable discipline hit his children with a belt.

 

How bad was the house when the police visited?

  1. In a statement for the police made on 27 July Mrs McLaughlin stated that she was “immediately struck by the chaotic, disorganised, dirty, unhygienic and filthy environment of the home.” It was her judgment that placements were required for the children “as I could not leave them in the dangerous and inappropriate environment in which they were living.” The cleanest room, where the TV was placed, had clothes strewn across it; it was dirty and had loose wires across it. The bathroom was extremely dirty; all areas in it were “ingrained with dirt and grease. It appears not to be used.” The toilet was in a similar condition. The mattress in one of the bedrooms was “dirty and rotten with dirty sheets on it“. Clothes were strewn across the room or were in piles against the walls. She stated that she could not find a clean pair or knickers for one of the younger children. The only clean clothes were adult male clothes in the wardrobe, still in their dry cleaning bags. In the kitchen the floor was filthy, and there was “no apparent food in the freezer – only plastic bags.” The cooker was dirty with burnt rice in the grime. She saw no food for the children. In the hallway, which was also dirty, there were loose wires across the floors and sockets hanging from the walls. The children were unkempt with matted hair, and dirty faces and clothes. They were extremely reluctant to engage with the social workers and the two eldest were “hostile“. One child had an apparent skin condition some parts of which were “weeping“. Mrs McLaughlin could find no medication in the home. In her oral evidence she told me that this was one of the worst homes she had ever been in, before or since. A statement made by another social worker on the visiting team, Mark Burgess, was to a similar effect.
  2. In her evidence to this court Mrs McLaughlin confirmed that she could clearly remember the dry cleaned suits. There was material covering the windows which made it dark. There were clothes piled up on the floor and wires across the room. Thee were bundles of sticks in each room,. The home smelt of urine. A police officer put a key into the grime on the bath “and it swallowed up the key“. The ‘fridge and cooker were very dirty. There was no food apart from a snapper fish in the freezer.

 

 

The Judge didn’t believe the allegation about the key (which I think is meant to indiccate the depth of the grime on the bath) , but that the photographs did show that the house was not in a state which was suitable to accommodate children of any age

 

  1. I consider that Mrs McLaughlin’s recollection of the state of the property has been affected by the passage of time, and in some limited respects is unintentionally exaggerated. For example, I doubt that it would be literally possible for a key to be “swallowed” in grime as she suggested. Furthermore Ms Toal’s recollection of what was reported with regard to the availability of clean underwear was that it had been difficult to find any rather than that there was none. Nonetheless the material to which I have just referred persuades me that, bluntly, the premises were in an appalling state. It is inevitable that social workers must as part of their duties see many homes which are less than perfect in their cleanliness and safety, but it is evident to me that the concerns expressed in the contemporaneous records were not exaggerated for forensic purposes but were genuine and substantially true. It is understandable that caring parents like Mr and Mrs Williams find it hard to accept the full extent of the deficiencies that have been described, but I cannot accept that the state as described represented a transient phenomenon caused by a short term illness. If there were any doubt it is laid to rest by the photographs produced to me by the claimants. These were put to witnesses, but their provenance was not a matter of formal evidence and is therefore uncertain. It appears, however, that they may have been taken by the police. It is possible they were taken after some, perhaps preliminary, attempt, had been made to start remedying the deficiencies. Nonetheless they show very concerning conditions. If there is more food in the freezer than the snapper just mentioned, it is contained in unwholesome looking bags. The fridge itself is filthy, as is the cooker and various other surfaces. There are indeed hazardous wires on the floor, even if they are not across the entire floor. There are piles of items in various places, and a tied bundle of sticks is clearly visible. Accordingly I am entirely satisfied that on 5 July 2007 the claimant’s home was not a suitable environment in which to accommodate children of any age.
  2. That the conditions in the home may not always have been unsuitable for children in this way received some support from the information the defendants obtained from the school attended by four of the children that they always looked clean and tidy. They had a 100% attendance and punctuality record, and there were no other concerns expressed. However this reassurance cannot outweigh the strength of the evidence of the actual observations made on 5 July by professional social workers whose findings, subject to the qualification mentioned above, have been, I am satisfied, substantially accurately described to me by Mrs McLaughlin. Further it was clearly reasonable for her and her colleagues to believe that such a state of affairs could not have come about during a few days or even weeks previously.

 

 

So it was clearly right for the police to have removed these children, and for an investigation to take place.

It is rightly not in dispute that the circumstances existing on 5 July justified immediate action to safeguard the welfare of the children and, in particular, it is accepted that the police decision to invoke their powers to protect children under section 46 of the Children Act 1989 was justified. A serious allegation of physical abuse had been made which clearly required investigation. The police arrested the parents and therefore those with parental responsibility were not in a position while in custody to look after the children. I am satisfied that the children presented as possibly neglected. The home was clearly in an unsuitable state to accommodate the children, even if an adult to care for them had been identified. However the relevance of these concerns extends beyond the immediate action taken by the police: it forms the background to the consideration of the subsequent actions of the defendants to which I must now turn.

 

 

Could the children have been placed with relatives, rather than coming into foster care?

 

I find it surprising that there is no contemporaneous record of the steps taken to look for alternative accommodation. However I note that in spite of the assertion made now by the claimants that family members were willing to take the children in, no such suggestion was made in the correspondence sent by their solicitor to which I will have to refer for other reasons below. Given the clear wish, indeed desperation, of the claimants to have their children back in the family rather than in separate and in some cases what they believed to be distinctly undesirable foster homes, I consider the absence of such a suggestion at the time inconsistent with any realistic chance of one or more family members having been willing or able to take on the challenging task at short notice of accommodating all or part of this large family. I conclude that throughout the period with which I am concerned no realistic alternatives were available, and that the defendants did probably take sufficient steps on 5 July 2007 to satisfy themselves of that position at the time.

 

 

The section 20 “agreement”

 

  1. On 6 July Mrs and Mrs Williams signed a document carrying the title “Safeguarding Agreement in respect of [their eight children]“. It was also signed by Ciara Toal. The circumstances in which it was signed, and its effect have been the subject of significant dispute between the parties and I must therefore set out what happened in some detail. Where there has been a significant dispute of fact I shall make my factual findings clear.
  2. After reciting the parties to it [the claimants and Hackney Children and Young Person’s Services] the “agreement” continued as follows This document was drawn up on Friday 6th of July 2007 and is a Safeguarding Agreement concerning the child mentioned above.

    This Safeguarding Agreement was drawn up in relation to all of the children. Although the agreement is not legally binding, it may have significance, should there be any court procedures in the future.

    We, Mr & Mrs Williams parents to all the above children, agree to the following:

    1. That all the children will remain in their foster placements for the present time.

    2. When contact takes place you will encourage the children to return to their placements and ensure [sic] them that this is a safe place.

    3. That we will behave appropriately while contact is taking place, ie assure the children that we love and care for them, show them affection.

    4. That we will not discuss with any of the children what has happened.

    5. To continue to comply with Hackney Children’s Social Care.

    In conclusion Hackney Children’s Social Care will seek legal advice with a view to protecting the children if it is found that parents are not complying with the contents of this Safeguarding Agreement.

 

 

That wording clearly is a section 20 agreement [if a badly drafted one, it does contain agreement to the children remaining in foster care
) and the Judge says that the document is signed. . If the parents had signed that, and had understood what they were signing then there’s no real case here. The home conditions were unacceptable for children, and it was clearly going to take a bit of time for that to be turned round. If the parents felt that the Local Authority were dragging their feet once the home conditions were good enough, their remedy was to object to section 20 continuing.

 

So there’s a mystery here, knowing that the Judge did award them compensation.  What’s the issue with the section 20 agreement?

 

By the time this document was signed all the claimants’ children had been placed in foster homes. Mr Williams’s account in his witness statement – supported formally by Mrs Williams in her witness statement – is that after their release from the police station he and his wife went to the defendant’s offices arriving at around 9.30 am. They met Mrs McLaughlin and asked for their children back. She told them that the defendant wanted to inspect the house and if it had been tidied up and cleaned they would return the children. She told them to return to the office at midday. Accordingly, he says, the claimants went home and cleaned and tidied it up. No-one attended to inspect it. On their return the defendant’s office they were met by Mrs McLaughlin and Ms Toal who told them that the police had now issued a Police Protection Order under which the defendant could hold he children for 72 hours. Ms McLaughlin then produced a document in which the defendant said the children would be released after 72 hours, and asked the claimants to sign it. Mr Williams said he wanted to speak to a solicitor before signing a document to which Mrs McLaughlin responded that the claimants should not speak to a solicitor as otherwise they would not get their children back. As the claimants were about to leave Mrs McLaughlin told them that unless they signed a document they would not see their children again. Because they were tired and did not understand what was happening they panicked and signed the document Mrs McLaughlin then said that they could see the children that afternoon. Mr Williams says he made it absolutely clear that the claimants wanted to take their children home but they were misled into signing the “agreement”.

 

 

So that’s the allegation, that the section 20 document was signed under duress – and importantly that when the parents said that they wanted to see a solicitor before they signed it, were strongly discouraged from doing so.

 

The Judge had to decide whether that was the case – not helped because there was not a contemporaneous account of the meeting

In assessing the evidence I have heard on the circumstances surrounding the signing of the so-called section 20 agreement, I have had regard to the fact that the claimants were on any view in a highly distressed and doubtless tired state when they met Mrs McLaughlin and Ms Toal. Their recollection of what they were told is likely to have been clouded by their understandable emotions, and indeed anger, at what had happened. They were vulnerable people without advice facing two officials vested with the powers of the state to take their children away, possibly indefinitely. The claimants were not therefore in an ideal position to understand the complexities of what they were being faced with. On other side, the two social workers were dealing with an unusual and fraught situation. The defendants had as a matter of urgency found themselves having to accommodate eight children, who themselves were showing signs of distress, against a background of apparently serious allegations of physical abuse, and a home which was without doubt at that moment unfit for accommodating children. Considerable, and to my mind laudable, energy had been devoted to inspecting the home and relocating the children in these challenging circumstances. The parents, however caring they wanted to be, were arguably not in a position to offer that care without being in breach of bail conditions. The notes of what happened are almost certainly not complete and understandably the officers’ direct recollection of what was said is also incomplete. However, given all the circumstances, I consider it likely that the claimants have built up a mistaken picture in their minds of what they were told, in part through misunderstanding at the time and in part through their distress at having to relive these events repeatedly over the intervening years. I prefer the account to be gained from the contemporaneous record as supplemented by the evidence of Mrs McLaughlin and Ms Toal where it conflicts with that of the parents. That does leave a number of points of serious concern about the process adopted to which I will return after examining the legal framework under which the consensual accommodation of children by a local authority is meant to occur.

 

 

The police bail confuses matters. The parents would have been in breach of their bail conditions if they had asked for and been given the children back.

 

This is IMPORTANT IMPORTANT IMPORTANT., the Judge here decided that the exisatence of bail conditions preventing a parent caring for a child DOES NOT MEAN that for the purposes of s20 the parent is prevented or incapbel to providing care for the child. The parent would still need to actively  consent to s20.

 

  1. Police bail
  2. Bail in this case was granted under the powers accorded to police by section 37 of the Police and Criminal Evidence Act 1984. Conditions may be imposed by virtue of section 47. The person bailed has a right to apply to a magistrates court for a variation of the conditions: section 47 (1E), (1D). The conditions can be varied by the police. Breach of a bail condition entitles the police to re-arrest the bailed person: section 46(1A). Such a breach does not constitute a statutory offence: Regina v Ashley [2005] EWCA Crim 2571, [2004] 1 WLR 2057.
  3. It follows that any attempt by Mr and Mrs Williams to effect the return of their children home would not be an offence, unless, arguably, the conduct amounted to some substantive offence. Therefore the consequences of non-compliance would be most likely limited to a consideration by the police of whether to re-arrest the parents. The most likely immediate reaction to any attempt by the parents to take their children out of foster care would, or should, have been an urgent application by the defendants to the court for one of the available orders authorising them to retain the children in their care. Such an application would of course have enabled the parents to make representations to the court and, potentially give undertakings with regard to their care of the children and their plans for improving the home.

 

 

The existance of the bail conditions thus didn’t remove the need for a s20 agreement provided by consent.  Why is this IMPORTANT?  Because if a parent is arrested and has bail conditions and does not sign a s20 consent, the LA have to issue care proceedings – they can’t rely on the bail conditions themselves. And potentially any case where that HAS happened, could now be a Human Rights claim.

 

 

  1. The parties’ submissions on the validity of the section 20 agreement
  2. The claimants submit that the defendant had no power to keep their children away from them after the expiry of the PPO, 72 hours after it was made on 5 July 2007, without either a court order of one of the types described above, or the consent of the parents to a consensual arrangement pursuant to section 20. They submit that there was no valid consent obtained on 6 July for a number of reasons:

    a. The mother at least lacked the capacity to give such consent because of her mental illness or general distress.

    b. Neither parent was fully informed to enable them to fully understand the consequences of their giving a consent, to appreciate the options available, and to be in possession of all the material facts.

    c. They were coerced into signing the agreement by the threat of not seeing their children again.

    d. They were not told of their right to take their children home at any time

    e. There was no indication that the agreement was to have any effect after the expiry of the PPO.

 

 

 

Ready?  This next bit is IMPORTANT IMPORTANT IMPORTANT IMPORTANT  – the Judge here sets out that a section 20 agreement HAS to convey that the parents have the right to withdraw their consent.  He also suggest that the parent needs to be told of their right to take legal advice. That goes further than Hedley J’s case on section 20 (Coventry City Council v C, sometimes called Re CA). Don’t forget that at the time that the decisions happened in this case, Hedley J’s judgment had not been given, and wouldn’t be for another 8 years…

 

 

  1. Capacity for this purpose is equated to capacity as defined in the Mental Capacity Act 2005: see paragraph 37 of Coventry City Council v C [above]. I am satisfied that both Mr and Mrs Williams had the capacity to understand what they were told and the consequences of the decision they were being asked to make. They were distressed, but not so distressed that they lacked the capacity to make decisions. In my judgment this case is far removed from that of the newly delivered mother under consideration in C. Mr and Mrs Williams were able to express their wish to have their children returned as soon as possible, and to challenge the allegations made against them. They were capable of understanding what they were told. That their distress has resulted in their misunderstanding what they were told has more to do with the inadequacy of the information conveyed to them and its communication than their capacity to understand it.
  2. I do not consider the claimants were fully informed of the matters of which they should have been informed:

    a. Bearing in mind the threatening circumstances in which the “Safeguarding Agreement” was offered to the claimants, its form suffered from very similar defects to those described by Tomlinson LJ as being “comical“.

    i. On its face the agreement is said to have possible “significance” in court proceedings. The strong inference is that the “significance” would be adverse to the parents’ prospects of seeing their children back home. This is reinforced by the threat of the defendants to seek legal advice in the event of non-compliance by the parents; clearly such advice would be with a view to making an application to the court.

    ii. The document makes no reference to the legal basis on which the children are to be accommodated by the defendants. There is therefore no guidance for the parents as to the context of what they are signing.

    iii. The document contains only a list of obligations being imposed on the parents, with no reference to any obligations on the part of the defendants. In particular there is no mention of the parents’ legal right to withdraw their consent and require the return of their children.

    iv. The parents are required “to comply” with the defendants whatever that means. It has the look of a provision which requires the parents to comply with absolutely anything the defendants might require.

    b. There is no persuasive evidence that the parents were expressly told that that they had a right to take their children away from local authority provided accommodation at any time or to object to that provision and I accept that they were not. It is no justification for this omission that the bail condition prohibited unsupervised contact. As was pointed out there could have been a number of solutions, ranging from either the parents or the defendant persuading the police to vary bail to allow alternative accommodation with family and friends if any were identified who could help. There is also an issue about what the police would have done if the children had returned home. Breach of police bail is not an offence and there has been no evidence enabling me – or the claimants – to know what was likely to have happened. It is clear that this issue was not raised or discussed by Mrs McLaughlin and Ms Toal when obtaining the parents’ signatures to the agreement.

    c. There is no evidence that they were told, still less encouraged, to seek legal advice before signing the agreement.

    d. I agree that there was no clear indication offered as to the effect of the agreement following the expiry of the PPO.

    e. While I do not accept that the parents were told, or that the defendants’ officer intended to convey to them, that they would never see their children again if they did not enter the agreement, I do accept that this was what, in their distressed state, the claimants understood.

    f. In short the circumstances, combined with the inadequacies of the information conveyed, were such as to amount to the “compulsion in disguise” of the type described by Hedley J in the Coventry case. For the same reasons such agreement or acquiescence as took place was not fairly obtained.

  3. For these reasons I conclude that on 6 July there was no valid consent obtained from the parents such as to give the defendant authority to accommodate the children under section 20. It is therefore unnecessary to go on to consider the final part of the test, namely whether action under section 20 was a proportionate response to the circumstances facing the defendants at that time. Had I been satisfied that the parents had been fully and fairly informed of all relevant matters and given their consent, which I am not, I would have accepted that the circumstances were such that it would have been proportionate to take action to accommodate the children under section 20. The potential risks to the children posed by the condition of the family home, the parents’ apparent unwillingness to acknowledge the extent of the problem, the allegations of abuse which were under investigation, and, as I find, the absence at that time of any established alternative accommodation would have made such action a reasonable response.

 

Note that IF the parents had given a valid s20 consent, without the flaws in the process, the Judge was satisfied that on the FACTS of the case keeping the children in foster care until the home conditions were resolved was the right thing to do for them – it was a proportionate outcome. It was the failings of obtaining the s20 agreement – particularly the failure to really convey to the parents that they had a choice not to sign it and that they could withdraw their consent at any time, which sank this Local Authority.

 

The evidence offered in this case has been considered already. I have found that at material times the defendants were indeed acting outside the statutory authority granted to it by Parliament to interfere with the family life of Mr and Mrs Williams. However they were doing so in the mistaken belief that they had sufficient consent from the parents to authorise their actions under section 20 of the Children Act 1989. They were taking decisions and implementing actions solely for the purpose of protecting children against risks which, on the basis of the information they had, they reasonably believed required protective steps to be taken. It was not disputed that some action was justified as a result of what was found on 6 July. There was at all times a potential for conflict of interest between the children and their need for protection and the parents who were suspected of neglect and abuse. The fact that they were subsequently exonerated of the criminal allegations does not mean there was not a basis for a belief that protective action was required. Therefore I find some difficulty in the distinctions Ms Cooper has sought to persuade me exist between this case and one concerning the actual diagnosis of abuse. Diagnosis and assessment of risk to children is not a one off event, but a continuous process in which the significance of information and the balance of risks has constantly to be reviewed. As the, at times somewhat painful, dissection of decisions and processes in this case has shown, disentangling the rights and wrongs of individual decisions can be complex. It would in my judgment raise the danger of inhibiting authorities from taking steps to safeguard children in difficult cases were they to be open to a minute examination of their every action in a case like this. In short, if there are exceptional cases where there is no conflict justifying an exclusion of cause of action in favour of a parent, this is not one of them. This is not to apply a blanket policy, but to do my best to apply the principles of the common law as determined by the higher courts to the facts of this case.

 

 

 

The Judge deals with the misfeasance in public office claim – as we’ve previously discussed on this blog, a key ingredient is that the action is deliberate, and here the Judge was satisfied that the professionals were operating on the mistaken belief that the parents had validly consented to s20 and that the Council thus had a legal power to keep the children in foster care – they were wrong about that, but it was a genuine belief.

 

The parents did, however, succeed on the Human Rights Act claim and were awarded £10,000 each.

 

 

  1. I consider that comparable factors are relevant in an Article 8 case generally, and the present case in particular. This was undoubtedly a close family presided over by loving parents. They were extremely distressed by the continued separation from their children and constantly voiced their anxieties in that regard to the defendants. They witnessed the adverse effects of foster care on more than one of their children, one of whom was a baby who was being breast fed. On the other hand, I must bear in mind that the initial separation was justified, and that an investigation of the type which occurred would have taken place in any event. This is not a case of permanent loss or bereavement, and the children were returned in the end.
  2. Clearly the claimants have not received adequate redress to date. While certain of their complaints were upheld by the complaints process and the Ombudsman, they have received no acknowledgement let alone compensation for the unlawful deprivation of the care of their children for a number of months. Reminding myself that awards of this type should be fairly modest, I consider that the appropriate sum to award to each parent is £10,000 each. It was contended by Ms Cooper that I should award aggravated or exemplary damages, but if I understood her submissions correctly this related to the misfeasance claim which I have rejected. In any event I do not consider that such an award would be appropriate.Conclusion
  3. For the reasons given judgment will be entered for the claimants in the sum of £10,000 each. I will hear submissions on any further and consequential orders that are said to arise out of this judgment.

 

 

 

 

Strategy meetings

 

If you aren’t familiar with Strategy Meetings, they usually happen where there is a suspicious or unexplained injury to a child, and the medical professionals meet with the social worker and sometimes police, to gather together all of the relevant information and consider the options for going forward.

 

In this case, Re L  (application to withdraw ) (Head injuries : Unknown cause) 2015   http://www.bailii.org/ew/cases/EWFC/HCJ/2015/67.html

 

they took on a particular significance.

 

A quick caveat – this case took place in my local Court, so of course I know some of the lawyers involved, and it was decided by my Designated Family Judge. I have had absolutely no involvement in the case (I never write about cases that I have had even a tiny part in) but of course it is much more easy to be dispassionate about the rubbish arguments deployed by Mr Edward Shirtsleeves and  Miss Rebecca Cufflinks of counsel when I’ve never met them and never will, rather than people who might concievably be in kicking distance of my shins from time to time.

 

Broad issues in this case were that in October 2014, a child presented to hospital with signs of head trauma. He was unwell at the time and has thankfully recovered.   A strategy meeting was held in November, and care proceedings were later commenced. The child was made the subject of an Interim Care Order and placed with an aunt.

 

At the final hearing, the Local Authority sought findings that the child had been shaken by one of his parents, suffering significant harm as a result.

 

After the medical evidence had been heard in those proceedings in June 2015, the Local Authority applied to the Court to withdraw their application.

 

  1. Essentially, the evidence of the experts and medical professionals was put to the test over those days, and by the conclusion of the medical evidence it had become clear to all those in this matter, including myself, that the local authority, who must prove their case against the parents, were in a position where it was highly unlikely that the evidence would support findings to the requisite standard against the parents and the threshold criteria would not be met in this single-issue case. I make it plain that there can be no criticism of the fact that the Local Authority issued proceedings here where there was clearly a prima facie case from the time L fell ill on the basis of the medical information which was supplied to them.
  2. Very properly in my judgment, and with exemplary good grace, the Local Authority made their application having taken stock of the evidence available to them at this point in the hearing.
  3. To found the basis for permitting the local authority to withdraw their application, I note the difficulties posed which have arisen in this unique case: some are serious, some perhaps less so, and some only visible with hindsight. There were gaps in the information available to the experts, and gaps in their own expertise as regards being able to come to clear understanding about what happened to L medically. There was, however, less uncertainty amongst the treating clinicians at Worthing Hospital as regards the cause of L’s head injuries at the critical point in time when life-changing decisions were to be made as regards his future, and I have concluded on all the evidence that this is something which requires careful exploration and recording in this judgment.
  4. L’s case and his long separation from the care of his own family will, I hope, contribute to a greater understanding of how the identified omissions which prevailed in this case might be avoided in future, though that may be poor consolation for his family.
  1. I have the weight of the expert evidence in this case as my yardstick to measure the identified omissions: it is difficult to imagine a more experienced and respected array of consultants with specialist knowledge, who have been stretched to and at times beyond their limits, but who have also provided valuable opinion in terms of their views of best practice. The case illustrates the position that there are limits to what can be achieved forensically.
  2. It is important that this judgment is seen as specific to the highly unusual case of L. Hindsight offers the court the opportunity to develop a counsel of perfection, but I am the first to acknowledge that this is unlikely to be achievable and practices vary and will always vary, and may be resource-specific. I can only do the best I can on what I have to go on in this matter with its very unusual features. The information about L which the experts had to go on was undoubtedly insufficient, and that in turn has left the court in the position where it cannot simply bypass their powerful evidence and return without more to the clinical picture available at Worthing Hospital to make findings, because such doubt has been cast upon L’s case as it was dealt with there. The information that there was what now appears to have been a very relevant differential diagnosis in relation to the cause of L’s injuries was available to the hospital, but it was not provided to the Local Authority at the outset of the case. The fact that there was a later differential diagnosis with a recommendation for further investigations related to L’s treatment was not fully conveyed to anyone in this case until the matter got to court.

 

 

 

If you are involved in a child protection case involving a head injury to a child or are a doctor who is involved in this area, I’d commend the entire judgment to you. It throws up a lot of really important practice issues, which are beyond the scope of this small(ish) piece.

You will see that although the Judge does not criticise the Local Authority for bringing the case to Court (and of course the Court when they made Interim Care Orders had to make the decision on the same information that the LA had),  we still end up in a situation where the parents were separated from their child for around seven months when they had done nothing wrong.

 

The mother was separated from her child for seven months. That is an almost unimaginable situation. I reaffirm the significance of this; of what she has missed out on in enjoying the first wonderful months of her child’s life and of what she must suffered as a result. She has lost her happy relationship with the father as well.

 

I think all of us could agree that this is intolerable. But what’s the solution?  One immediately cries out that the case must be heard more swiftly, but it is clear from reading this case that it was only by deploying a raft of very specialist experts that the true picture with all of its complexities emerged.  If someone had decided at the outset that the Court would reach a decision after say three months, those experts wouldn’t have reported and it is possible that the wrong conclusion could have been reached.

 

As Billy The Kid used to say,  “Speed’s fine, partner, but accuracy is final”

The other solution is not easy. Faced with an application for an Interim Care Order, with the treating medical professionals telling the Court that this child has been hospitalised as a result of one of his parents violently shaking him,  one is therefore asking a Court to take that risk on their own shoulders and keep the child and family together.  As we can see with the benefit of hindsight, that would have been the right thing to do on this occasion.  But ask yourself what would happen if a Local Authority (or a Court) decided that the medical evidence might later be proven wrong and left the child at home, where a second injury possibly more serious or life-threatening occurred?   How would Ofsted, the newspapers, the House of Commons, the public, react to that?

Part of the problem is that at the time when the social worker and then the Court has to make the decision about where the child should be whilst everything is investigated, that those cracks in the medical evidence haven’t yet appeared. It is only when ALL of the source material is available and looked at by people in painstaking detail, people with expertise, that you really get a sense of whether the evidence is unequivocal or whether this is a case with some real grey areas.

A Judge faced with an application for an Interim Care Order in those circumstances will know that there is a  risk of very serious injury but also that until all of the experts has reported we will not know whether the medical evidence is cast-iron or swiss cheese. Short of the parents going to live with another trustworthy adult or vice versa  (which is not really a practical solution for a seven month period of time), the risk can’t be absolutely protected against whilst the child is with the parents.  What’s the lesser of two evils here?

The way to keep the child at home with the parents is for the Judge to say “I know that there is risk here, I know that if it turns out that the medical evidence provided so far is right then these parents may have seriously harmed the child and may do it again, but experience has showed us that the only time one can be absolutely confident about the medical evidence is at final hearing when it is put to proof, so I am deciding that the risk should be taken in keeping this family with the parents, and I make that decision knowing that something could go wrong, no matter how much effort is put into a protection plan”.    And for a Court of Appeal to back a Judge up in that situation.

I would not pretend that this would be an easy thing to do.  If it goes wrong, the clamour would be for heads to roll and it would be a judicial head on the paraphet.

 

Anyway, back to the particular case.

 

Everyone was in agreement that the case should be withdrawn and the Court should find that the threshold was not met; but the issue was whether the Court should consider making a declaration under the Human Rights Act and possibly compensation   (although note that the Legal Aid Agency are currently stating that the Statutory Charge applies to such HRA compensation and it would all be swallowed up to repay legal costs)

 

The argument was twofold :-

 

1. That the medical professionals on the ground (not the Court appointed experts) had made serious mistakes which led to the child being removed and hence a breach of article 8

2. That the strategy meeting convened had been one at which a decision was made for the issue of proceedings, and thus was something that the parents should have been invited to, and failure to involve them was a breach of article 8 and article 6.

 

The Judge had been critical of some of the treating medical team on the ground, but was mindful that this was not, and could not purport to be a medical negligence case – the doctors had not been represented, nor had their Trust, and it was going outside the scope of the care proceedings to conduct that exercise.  The Court could go as far as it had, which was to identify practice areas for improvement and highlight failings, but apportioning blame was going too far.

 

The second point was developed more fully.

 

  1. I have been referred to Re R [2002] 1 FLR 755, Re L [2002] 2 FLR 730, Re G [2003] 2 FLR 42, where the protection offered by Article 8 was seen to extend to all stages of the decision-making process in child protection proceedings. [4]Re M [2001] 2 FLR 1300; Re S (Minors) [2002] 1 FLR 815; McMichael v UK [1995] 20 EHRR 205 and the injunction that: “Whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8.”
  2. In Re G, the importance of full and frank disclosure by a local authority was emphasised:

    i) Informing the parents of its plansii) Giving factual reasons

    iii) Giving an opportunity for parents to answer allegation

    iv) Providing an opportunity to make representations

    v) Allowing the parents the opportunity to attend and address any crucial discussions.

  3. I have also been referred to Re M (Care: Challenging Decisions by Local Authority) [2001] 2 FLR 1300 where parents were not present at a discussion where the decision was taken to place a child from adoption; Re L (Care: Assessment: Fair Trial) [2002] 2 FLR 730 for the premise that the case must be viewed as a whole and exclusion may not in itself render the proceedings unfair.
  4. S 47 of the Children Act 1989 governs the duty of a Local Authority to investigate. The relevant aspects of this section are:
  5. S47 (1) 1:

    (1)Where a local authority—………………

    (b)have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm,

    the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.. . .

    (2)(b)have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm, the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.

  6. In addition I have been referred to the Sussex Child Protection and Safeguarding Procedures, published in March 2015. I have not been privy to this document hitherto. It contains a chapter on Strategy Discussions and Discussions, envisaged as a preliminary step before initiating a S 47 Enquiry, and when one is required, to plan how it should be undertaken. It provides guidelines for convening a strategy discussion or discussion. Discussions are advised in the case of serious physical abuse. It is identified as a “confidential professionals’ discussion” and participants are identified as a “professionals sufficiently senior to be able to contribute, although exceptional circumstances may arise where others may usefully contribute”. The relevant Consultant is highlighted as a required participant, as here.
  7. There is no requirement to include parents at such a discussion.
  8. In this case, I am faced with the tension between the need for a confidential professionals’ discussion to take place to which parents would not ordinarily be invited, and the argument that these parents should have been invited to contribute to that meeting, either for whole or part of it.

 

More detail about the Strategy Meeting followed

 

 

  1. (a) The Strategy Discussion
  2. In a case such as this, the decision to initiate a statutory s 47 inquiry (set out above) is taken following a strategy meeting held with relevant interested representatives of social services and external agencies such as the police, GPs and other medical personnel, schools, carers and, in appropriate cases, more specialised individuals. No more than and no less than that occurred in this case.
  3. The document generated by the meeting on 5th November is headed “Record of Strategy Discussion.” I see that It was called for as follows: “Referral from hospital this morning L had been admitted on two occasions. L has subdural bleeds of different ages. Suggestion non accidental injury. Possible shaken baby“.
  4. The proceedings hare was set running on what appears to have been the basis of the single clinical view provided at that meeting. There were a number of doctors at the meeting – Dr Cooke, Dr Kabole and Dr Shute in particular.
  5. These meetings are familiar to the Court. There is a protocol locally in operation across the three local authorities which sets out the normal parameters for such a discussion, which in short includes those who should “generally” be involved. It reads “all participants should be aware that a strategy Discussion/Meeting is a confidential professionals meeting and as such, notes of the meeting should not be shared within anyone without the permission of the chair”.
  6. It was chaired by Amanda Cole but I do not know who made the record. Its accuracy has been explored by the parties with Dr Hazell who gave her input over the phone. I have to say that the list of negatives does not quite coincide with Dr Hazell’s more nuanced evidence but I make nothing of that.
  7. The Social Worker Ros Sims told the court in her statement that L’s injuries were confirmed at the strategy meeting by the consultant paediatricians who attended as non-accidental injuries and consistent with L having been shaken and have resulted in the significant harm that has been medically evidence. The entire case stood on the information available to West Sussex County Council. It was the only thing which supported his removal. The initial stated belief of the local authority was that “L had experienced significant harm from one or more of his carers”.
  8. It was known that the parents were to be arrested and interviewed because it is recorded. The only planning in relation to further action by the local authority was that they were to make a decision regarding legal proceedings. In Re G [2003] 2 FLR 42 the first of the identified requirements upon a Local Authority is to inform parents of their plans. The recorded plan was to move to a decision in relation to legal proceedings. That is all.
  9. The issue is whether in this case, as distinct from other cases where parents would not normally be included in a confidential professionals meeting,[                 and                    ]should have been invited.
  10. Mr Storey argues that on the basis of Re G, where the protection offered by Article 8 was seen to extend to all stages of the decision-making process in child protection proceedings, this particular strategy discussion should be considered as part of that inclusive roll call to say that he fact that the mother and father were not invited to the Strategy Discussion was an incursion into that right because to was a decision to separate the mother from the child.
  11. Looking again at that decision. I am mindful that what has to be determined is whether, having regard to the particular circumstances of the case, and notably the serious nature of the decisions to be taken, the parents were involved in the decision making as a whole, to a degree sufficient to protect their interests. If not this would amount to a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as “necessary” within the meaning of Article 8.”
  12. Mr Storey takes that decision at its highest, and sets it as the first rule in every case, to mean that this particular decision was part of the trial process and the parents were entitled to participate without qualification. If that is the case, then potentially parents would be entitled to be present at every strategy discussion, and the essentially confidential nature of the discussions would be lost.
  13. Like the experts in L’s case I am really hampered. All I have are the recordings. All I know is that the wheels had been set in motion prior to that meeting because there was a plan to arrest the parents and the social workers were going to refer the case to their legal department. It was technically not a decision to separate the parents from L, as far as I can tell from the notes. They are not likely to reflect the whole of the discussions. However I do not have the benefit of the evidence of those present: they have not been required to set out their evidence as to what occurred and why.

 

 

That did make matters difficult.  The Judge distilled the HRA argument into a central question

 

To reach any conclusion as regards an infringement of the parents’ rights due to not being invited, a court would at the very least have to ask the following question; Was the omission to invite the parents to a confidential professionals’ discussion, where the case was extremely serious in terms of what was being advanced medically, where their accounts appear not been given to the discussion, an infringement?

 

The Judge goes on to say, that understanding that the HRA point was developed once it became clear that the medical evidence was less solid than it would have appeared at the outset of the case, that there were important evidential matters which would have been needed to be obtained and put to witnesses before the Court could properly make that decision.

 

  1. The evidential basis for answering those questions with care and fairness is not available to me. To really understand what occurred and why, a court would at the very least need a detailed response from the local authority, and evidence from the key participants which could be fairly and properly tested. I cannot therefore take this point any further.
  2. What does concern me however is the medical information which was given then and later which tended so strongly to characterise this case as a case of inflicted injury as opposed to there having been another possible identifiable cause as of 4th November and indeed throughout. That alternative possibility has never gone away during this case. The Local Authority assumed that to be the only available diagnosis at the start of the case and the court only had the single view upon which to proceed.

 

The Court also expressed disquiet about the medical information provided at that meeting, most notably that it was not communicated to the Strategy Meeting that at least one treating doctor had considered that there was a medical explanation for the injury due to an unusual clinical feature that might give rise to a differential diagnosis  (i.e that there might not have been an injury at all, but rather some sort of medical episode)

 

I know not whether those involved intend to leave it at that, or whether a stand-alone HRA claim will be lodged.

 

For the moment, the answer to the question  “Is it a HRA breach to have a strategy meeting which might result in very critical decisions being made for a family if the family aren’t present?”   is  “it might be”  –  and at the very least, this case has made us all think rather harder about the issue.

 

 

Human rights claim – £12,000

 

This is the decision of Bellamy J, sitting as a Deputy High Court Judge.

 

Re H (A child) 2014

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/38.html

 

In this case, the LA accepted that their actions had breached the parents article 8 and article 6 rights, and the only issue was whether there should be a financial penalty, and the scale of it.

 

I’ve rather given the whole plot away (in the style of a cinema trailer that shows you everything that happens in the film) in the title – the parents were awarded £6,000 each.

 

What was the nature of the breach? Well, in effect it was that the LA had obtained written consents from the parents for their child to be in voluntary care, but had not followed the principles of fairness in ensuring that the parents actually understood what they were signing up to and their right to say no.  (You will recall that the High Court gave a powerful precedent on this issue in Re C – particularly where a parent might be lacking capacity)

 

In this case, to be fair, the social worker picked up straight away that these parents might have some cognitive or learning difficulties.

  1. The local authority conducted an investigation pursuant to s.47 of the Children Act 1989. The assessment was completed on 29th May. The local authority considered that the parents had concealed the pregnancy. The local authority concluded that H was at risk of significant harm from her parents due to the concealed pregnancy, the parents’ learning needs and their limited support networks and that it would therefore be unsafe to discharge H into her parents’ care at that time.
  2. During the course of the assessment the local authority social worker noted that the parents’ learning difficulties were evident during discussions and that the parents appeared to have difficulty in understanding and processing information. She discussed her concerns with her manager. She did not take any steps to explore this issue further

 

Thus missing the boat. That would have been the time to get a cognitive assessment done, to establish what the parents issues were and find out the best way to work with them.  It didn’t happen, and arrangements were made for the child without any real consideration of whether the parents properly understood what they were agreeing to.

There is no record of the parents having been provided with an explanation of all of the available options or of the consequences if they did not consent to H being cared for by Mr and Mrs B or of there having been any discussion about how long this ‘informal’ placement might last. They were advised to seek legal advice if they were unhappy with this plan and were provided with a complaints leaflet. The parents did not seek legal advice.

 

 

The case moved to another social worker, who again picked up on the learning difficulty issue immediately.

 

The case was transferred to the local authority’s long-term childcare team in August 2013. The social worker later raised concerns with her manager about the lack of progress in completing an assessment of the parents. She suspected that this may be linked to what she believed to be the parents’ learning disability. The social worker was also concerned that the parents appeared not to have fully understood what they were agreeing to when H was placed with Mr and Mrs B. The parents were anxious to know when H would be returned to their care

 

Did that resolve it? Well, not quite.

  1. In October 2013 the Team manager sought advice from senior management. This led to a legal planning meeting being convened. The meeting took place on 12th November 2013. The meeting recognised that the placement of H with Mr and Mrs B was not a private fostering arrangement and yet was clearly a ‘placement’ as it was initiated by the local authority. The meeting decided,

    (1) that the parents should be asked to give their retrospective consent to the placement of H in the voluntary care of the local authority pursuant to s.20 of the Children Act 1989 with effect from the date she had been with Mr and Mrs B (7th June 2013);

    (2) that there should be an urgent cognitive functioning assessment of both parents in order to inform the local authority assessment and how best to work with the parents.

    (3) that if the parents refused to consent to H being accommodated under s.20 and placed with Mr and Mrs B and/or to co-operate with arrangements for a cognitive functioning assessment, then the local authority would commence care proceedings.

  2. It was also agreed that the social worker would meet with the parents to discuss the decisions made by the legal planning meeting. It was accepted that H, her parents and Mr and Mrs B had been subjected to unacceptable delay and uncertainty and that the need for conversation with the parents was now urgent.

 

 

Absolutely right that there should be a cognitive assessment. But to try to get the parents to sign a s20 agreement when there was a doubt as to their capacity can’t be right. This is of course after the Re CA decision, so obviously some people haven’t read it. Let me set out those principles again

i) Every parent has the right, if capacitous, to exercise their parental responsibility to consent under Section 20 to have their child accommodated by the local authority and every local authority has power under Section 20(4) so to accommodate provided that it is consistent with the welfare of the child.

ii) Every social worker obtaining such a consent is under a personal duty (the outcome of which may not be dictated to them by others) to be satisfied that the person giving the consent does not lack the capacity to do so.

iii) In taking any such consent the social worker must actively address the issue of capacity and take into account all the circumstances prevailing at the time and consider the questions raised by Section 3 of the 2005 Act, and in particular the mother’s capacity at that time to use and weigh all the relevant information.

iv) If the social worker has doubts about capacity no further attempt should be made to obtain consent on that occasion and advice should be sought from the social work team leader or management.

v) If the social worker is satisfied that the person whose consent is sought does not lack capacity, the social worker must be satisfied that the consent is fully informed:

a) Does the parent fully understand the consequences of giving such a consent?
b) Does the parent fully appreciate the range of choice available and the consequences of refusal as well as giving consent?
c) Is the parent in possession of all the facts and issues material to the giving of consent?
vi) If not satisfied that the answers to a) – c) above are all ‘yes’, no further attempt should be made to obtain consent on that occasion and advice should be sought as above and the social work team should further consider taking legal advice if thought necessary.

vii) If the social worker is satisfied that the consent is fully informed then it is necessary to be further satisfied that the giving of such consent and the subsequent removal is both fair and proportionate.

viii) In considering that it may be necessary to ask:

a) what is the current physical and psychological state of the parent?
b) If they have a solicitor, have they been encouraged to seek legal advice and/or advice from family or friends?
c) Is it necessary for the safety of the child for her to be removed at this time?
d) Would it be fairer in this case for this matter to be the subject of a court order rather than an agreement?
ix) If having done all this and, if necessary, having taken further advice (as above and including where necessary legal advice), the social worker then considers that a fully informed consent has been received from a capacitous mother in circumstances where removal is necessary and proportionate, consent may be acted upon.

x) In the light of the foregoing, local authorities may want to approach with great care the obtaining of Section 20 agreements from mothers in the aftermath of birth, especially where there is no immediate danger to the child and where probably no order would be made.

 

IF YOU DOUBT that a parent has capacity, you really shouldn’t be getting them to sign ANYTHING, particularly not a section 20 agreement.

 

Back to the case – the cognitive assessment didn’t arrive until 1st April 2014 – yes, eleven months after the issue was first spotted, and six months after it was spotted the second time around and a Legal Planning Meeting recommended it.

 

Perhaps my experience is unusual, but having worked at seven local authorities, I’ve never had a difficulty in obtaining a cognitive assessment – they aren’t reports that take a long time to produce – you can normally get them within 2-3 weeks of asking the doctor to provide them.

 

Oh wait, I’m wrong. That was the date of the APPOINTMENT. The report itself didn’t turn up for another 8 weeks, at the end of May. So yes, a year had passed between thinking the parents had learning difficulties and getting a cognitive.

 

To paraphrase Edmund Blackadder, we may have been at home for Mr and Mrs Cock-up here.

 

Here’s what the cognitive assessment said

  1. It is appropriate to set out Dr James’ conclusions at this stage in the narrative though she did not, in fact, report until 27th May 2014.
  2. With respect to the mother, Dr James says that all of her scores fell within the borderline range, indicating consistently limited functioning across all areas. With respect to the father, Dr James says that:

    ‘While [the mother’s] scores give a consistent picture of Borderline abilities, the distribution of [the father’s] scores, ranging as they do from Learning Disability, through Borderline to Average, is unusual, and presents a complex picture. As a result of this intellectual profile, [the father’s] ability to understand, process and use verbally mediated information and concepts is significantly below what might be expected, given his ability in other areas. This is likely to present a very real limitation for him in everyday life. The most likely explanation for this very specific impairment is that it is related to his epilepsy.’

  3. Dr James gave advice on how the parents should be approached. With respect to the mother, Dr James said that:

    ‘As far as information and advice presented verbally are concerned, [the mother] has a reasonable ability to understand this, and I would expect her to be able to cope well with the kind of discussion likely to take place during a parenting assessment. She will seem at times to be a little slow to respond to what is said, but if you wait for an answer she will give it in a way which shows that she has understood the question.’

    With respect to the father, Dr James advised that:

    ‘Allowance will need to be made for [the father’s] specific difficulties with verbal comprehension…Of particular importance in the course of the assessment will be not expecting him to portray verbally what he is capable of, since he can evidence this more effectively through practical means. In other words, his behaviour rather than his descriptions will be the best guide to what he can achieve.’

  • In a subsequent letter, Dr James gave the following further guidance so far as the father is concerned. She said that, 

    ‘The following guidance is intended to help his Solicitor to support him to have full capacity in the Proceedings. At the beginning of an appointment, [the father] can present with rushed speech, and a jumbled account of recent events. He needs a little time to settle down, after which he will become more coherent, and can be systematically led through the information he wants to convey. He responds well to direct questioning. Advice given to him should be expressed carefully to avoid ambiguity. Ideally, each sentence should contain one idea only, with a pause at the end of the sentence for this to be absorbed, before offering the next piece of advice or information. It can also be helpful to specifically remind him to listen carefully to important points.’

 

But you know, maybe these parents were unknown quantities and that explained some of the problem. Nope.

 

  1. Given that the father was in the care of this local authority during his own childhood, much of this information about his presentation and functioning should have been contained in the local authority’s earlier case file and should, therefore, have been available to the local authority when it became involved with the father again following the birth of H.
  2. The local authority finally issued these care proceedings on 29th April, 2014. H was born on 16th May, 2013. She was, therefore, fast approaching her first birthday when these proceedings were issued. It took this local authority almost a year to issue these proceedings. That delay was unjustified and inexcusable.

 

Where the Local Authority did recover some mild credit was in ‘fessing up once these mistakes came to light, rather than trying to defend the indefensible.

  1. Sonia Grant, Service Manager in the local authority’s Children In Need Service, filed a written statement. Most of the narrative set out above is based on Ms Grant’s evidence. Ms Grant concedes that in this case the performance of this local authority has fallen below acceptable standards. She says,

    ‘4.1 The local authority’s review of the events surrounding both situations has identified serious practice issues relating to the identification of [the mother’s] capacity to give consent, particularly in respect of the placement with Mr and Mrs B in June 2013.

    4.2 The parents’ capacity to consent was not fully considered or explored at all the key stages of the assessment and decision-making process…

    4.5 The placement with Mr and Mrs B was clearly a ‘Section 20 placement’ made by the local authority, who would have had to place H in foster care and possibly initiate care proceedings if Mr and Mrs B could not care for her. The Legal Planning Meeting held on 12th November attempted to bring the matter back on track to avoid further delay, but there was a significant delay in arranging the cognitive functioning assessment which only added to the delays within the case.

    4.6 The local authority accepts that the social work judgments and decision-making within this case fell below what was required at key points, and failed to fully take account of the combined complexities of the parents and H’s competing needs in a timely and child-centred way.

    4.7 The issues about parental capacity to give consent that occurred within this case have highlighted the urgent need to ensure social workers are aware of their responsibilities in this area. Therefore, the local authority intends to urgently address this training issue to avoid this happening again.’

  2. It is against that background that the local authority accepts that it has breached the parents’ rights under Article 6 and Article 8 and that it is appropriate for the court to make declarations. With respect to the declarations sought by the mother, the local authority concedes that it has acted in breach of the mother’s Article 6 and Article 8 rights in that it:

    1. failed to issue proceedings in a timely manner;

    2. failed to involve the parents in the decision making process;

    3. failed to take steps to explore concerns regarding the mother’s lack of understanding [though making the point that at the meeting on 18th November 2013 the social worker was satisfied that the parents were able to provide informed consent to s.20 accommodation at that stage];

    4. should not have sought the parents’ consent on 31st May 2013 or taken their proposals of alternative carers as consent to the placement with Mr and Mrs B;

    5. placed insufficient weight on the parents’ clearly expressed wish to care for H themselves;

    6. failed to explain all available options, timescales and the consequences if they did not consent to H being cared for by Mr and Mrs B;

    7. should not have asked the mother to sign an agreement on 3rd June 2013 consenting to placement away from the parents;

    8. permitted H to be cared for away from her parents against their expressly stated wishes;

    9. failed to acknowledge that they had placed H with Mr and Mrs B or to undertake a written viability assessment of Mr and Mrs B [though noting that it did undertake routine checks, interviews and a review of the accommodation in the process of making a decision that it was a safe arrangement for H]; and

    10. significantly delayed in assessing the parents’ capacity to parent H.

  3. With respect to the declarations sought by the father, the local authority concedes that it acted in breach of the father’s Article 6 and Article 8 rights in that it:

    1. failed to provide him with appropriate information as to the consequences of not consenting to s.20 accommodation;

    2. failed to consider or explore his capacity to consent to s.20 accommodation before removing H from his care;

    3. permitted unacceptable delay and uncertainty in the assessment process; and

    4. by its flawed procedures, deprived the father of living with H for the first year of her life [though being of the view that both parents have complex histories and difficulties and that H’s removal pending assessment of the parents was necessary to ensure her safety].

 

Having established those breaches, the Court then turned to the issue of damages. It is too law geek for the general public, but the judgment does set out an helpful analysis of the law and judicial approach towards making punitive awards in family law cases. It would be a decent starting point for skeletons for and against the principle.

 

  1. In the case with which I am now concerned H is these parents’ first child. Whilst it may be the case that had the local authority issued care proceedings soon after H was born an interim care order would have been made, the fact is that proceedings were not commenced promptly. They were not issued until shortly before H’s first birthday. It was not until June 2014 that these parents eventually managed to secure the return of their daughter to their care, exactly a year after she was placed with Mr and Mrs B. Whilst it is true that during that year the parents were having regular contact, supervised contact at a local authority contact centre is far removed from the joys of fulltime, unsupervised care of one’s own child. The residential assessment which began in June 2014 could have begun a year earlier. The cognitive assessment of the parents, not finally obtained until May 2014, could have been obtained months earlier. Unlike the parents in the Coventry case, these parents’ have suffered a loss of time with their daughter which was both unnecessarily lengthy and deeply distressing.
  2. I am in no doubt that, bearing in mind the guidance given in the authorities to which I have referred, this is a case in which merely to make the declarations set out earlier in this judgment would not provide just satisfaction for all that these parents have had to live through as a result of the conduct of this local authority. I am satisfied that an award of damages is ‘necessary to afford just satisfaction’ to these parents.
  3. Quantum
  4. The final issue is to determine the appropriate quantum of damages. There is little guidance in the authorities on the approach to be taken when quantifying an award of damages under s.8(2). If one looks at the authorities for appropriate comparators, again there is relatively little assistance.

 

It is worth noting the underlined passages – these parents were successfully reunited with their child, and had lost the first year of that child’s life due to these mistakes.

 

The Court looked at such historical precedents as there were for human rights act breaches and financial recompense and agreed with the parents that their claim for £6,000 each was fair.   (I think that’s probably a bit light, having read the case, but can you really be compensated for something as priceless as time with your child?)

 

To finish up, there was a film which had a very memorable strap-line, used in the trailers and on the posters. It was so memorable that everyone knows it, though hardly any of you will be able to tell me which film it was from. Let me know if you know it, or think you do.  Googling or such is cheating – you either know it, or you don’t. I know that you can type.

 

The strapline, apposite here was

 

BE  AFRAID

 

 

BE VERY AFRAID