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Inordinate delay in issuing proceedings (£45K damages)

 

This is a Circuit Judge decision made in my local Court (it is not a case that I or any of my colleagues are involved in, so I can write about it) so I will try to avoid much comment and stick to the reported facts.

 

Re X, Y and Z  (Damages: Inordinate Delay in issuing proceedings) 2016

http://www.bailii.org/ew/cases/EWFC/OJ/2016/B44.html

Three children had been s20 accommodated from January 2013 until July 2015 when an Interim Care Order was made. The Court determined that the s20 had been lawfully entered into and was valid, but of course on the authorities, a valid s20 does not prevent a human rights breach based on delay.  Whilst the mother in this case had never formally withdrawn her consent or lodged an objection, she had been asking for more contact with the children and saying from time to time that she would like them to come home.

 

  1. The mother clearly frequently stated that she would wish to care for the children and certainly to see them :
  2. i) 8.2.13 Letter from Z seeking to see the children.

ii) 1.3.13 Z asks for contact and to have the children back in her first meeting with a social worker

iii) 3.4.13 Z seeks fortnightly contact in a telephone call.

iv) 5.9.13 LAC review – stated that Z would like to be able to care for the children.

v) 14.1.14 Report for LAC review notes that Z would like to see the children and that she sometimes states she wants to care for the children and sometimes that she just wants to have contact with them.

vi) 8.4.14 Legal Planning Meeting Solicitor for Z stated that she had requested both children be returned to her care as soon as possible…if not returned to her care, would like increased contact.

vii) 26.11.14 LAC Review Z would like to be able to care for the children.

 

 

The Judge ruled that the children’s article 6 and  8 rights were breached in the following ways

 

  1. It follows from all that is set out above that I make the following declarations:
  2. i) West Sussex County Council acted unlawfully and in violation of the Convention Rights of X, Y and Z as follows:

a) Purported to exercise parental responsibility for X and Y for a period of almost two and a half years when they did not hold parental responsibility for the children.

b) Failed to promote contact between the children ,X and Y and their mother Z.

c) Failed to issue care proceedings for almost two and a half years causing the children to be without access to independent representation, failing to carry out adequate assessments and allowing the children’s permanence plan to drift.

d) The Independent Reviewing Officer failed to challenge the conduct of the Local Authority sufficiently robustly.

The judgment contains analysis of the relevant authorities on s20 breaches, s20 drift, human rights claims and calculating quantum.

The Judge concluded that each of the  children should receive the sum of £20,000 in damages  (*initially, with the case being called X, Y and Z, I’d assumed three children and hence £60k, but I am told two children. Still £45k is a lot of money)

 

  1. The factors to be considered for the children are substantially different to those for the mother and consequently must be assessed separately. The main factors in relation to quantum are :
  2. i) A failure to assess their needs for an inordinate period of time – over two years before any report was obtained;

ii) The fact that they were denied access to any independent legal representation for two and a half years – of particular importance when they had no relatives in the country who would be able to care for them and when they had been the subject of apparent abuse during their time in Jamaica;

iii) Little promotion of contact with their mother even though X indicated in February 2013 that he would like to go back to her – there was no contact for the next twelve months;

iv) No comprehensive assessment of their needs although it was indicated as early as March 2013 that such an assessment was required;

v) Frequent changes in placements without any input from anyone with parental responsibility

vi) Placement with W, the previous foster carer, without any such assessment or understanding of any abuse they had suffered in Jamaica;

vii) The fact that the children are now in separate long term foster placements with no contact with each other or any other relative and X is not in a culturally appropriate placement;

  1. It is apparent that the end result for these children is not a good one. It is not possible now to say that the outcome would have been any different if proceedings had been issued in early to mid-2013 which should have occurred. However, it is difficult to see how the outcome would have been much worse and the loss of a chance of a better conclusion must be reflected in any award that is made.
  2. This case appears to be at the upper end of the bracket that has been awarded in similar cases. The only aggravating feature which is not present in this case, which is present in the majority of other such cases, is the fact that I have found that the s.20 agreement is a valid one. I am not going to set out all of the possible comparators as they appear in the table in the Medway case but I would simply state that this case involves the longest period as well as a poor outcome which may not have been the case without the breaches. As a result due to all of the issues which have been highlighted I am satisfied that the children should be awarded the sum of £20,000 each for all of the breaches of their Article 6 and 8 rights.

 

 

In relation to the mother

 

The Mother’s Award

  1. The mother is in a different position as she did have the benefit of legal advice from June 2013 onwards and as a result would have been able to withdraw her consent at any time thereafter. This must be of significance in considering damages as the inordinate delay in this case is the most troubling aspect and that delay could have been stopped at any time by the simple act of instructing her solicitor to withdraw her consent.
  2. It is argued on behalf of the Local Authority that this feature is of such significance that it should mean that the mother would receive ‘just satisfaction’ by way of a declaration alone. However that ignores the other crucial factors in her case which include :
  3. i) The frequent requests for contact to her children which were simply ignored by West Sussex although there was no legal basis to do so;

ii) If proceedings had been issued the Local Authority would have been obliged pursuant to s.34 Children Act 1989 to promote such contact;

iii) The failure to properly assess the mother due to the fact that she had been fully assessed in the previous proceedings some five years earlier.

  1. It seems unlikely that the children would have been placed with their mother if the proceedings would have been commenced in a timeous fashion and as such there does not need to be any award for the loss of that chance. However, the same cannot be said in relation to contact as that may have been very different if addressed much earlier. The children are now stating that they will not see their mother but that was not the position when they first arrived at Gatwick in January 2013. This loss is even more significant now that each child has no contact whatsoever with any member of their family.
  2. In these circumstance the appropriate level of damages for the mother must be far lower than for the children and I assess the figure of £5,000 as the correct amount to compensate her for her Article 6 and (more significantly) Article 8 rights.

 

 

Looking at the chronology given in the judgment,  there was involvement with lawyers as early as 24th June 2013, which was still 2 years before proceedings were issued.

 

The Judge was very critical of the  Independent Reviewing Officer (IRO), who would have been holding Looked After Child Reviews at regular intervals during the 2 1/2 years of s20. He found that they, too, had been responsible for breaches of both the mother and the children’s human rights.

 

  1. The Independent Reviewing Officer failed to challenge the conduct of West Sussex and did not promote care proceedings. The functions of the IRO are set out within s.25 Children Act 1989 and they include monitoring the performance of the Local Authority of their functions in relation to the child’s case. In the case of A and S v Lancashire CC [2012] EWHC 1689 at para 168 it was submitted (and Jackson J did not demur) that the task of the IRO was to “monitor, persuade, cajole, encourage and criticise fellow professionals in the interest of the child”. Their roles are more fully set out within the “IRO Handbook” which provides the relevant statutory guidance. In the Lancashire Case it was found that the failures of the IRO amounted to a breach of the children’s rights.
  2. The actions of the IRO in this case are fully set out within the statement of Children’s Safeguarding Manager and which is referred to above, which concludes with a list of ‘Strengths’ and ‘Areas for Development’ and the latter included :
  3. i) “the Review minutes do not consistently contain sufficient specific evidence of IRO challenge, especially on issues in relation to progress towards permanence”

ii) “the decision specific to the permanence plan was not specific enough and did not contain any target dates”

iii) “would have expected more explicit detail in relation to the permanence plan of long term fostering and the need to seek legal advice”

  1. It does not seem to me that this adequately highlights the deficiencies of the IROs (there were two) in this case. There does not appear to be any note whatsoever of the IRO cajoling the Local Authority on timescales and this can be highlighted by two simple issues :
  2. i) There is a bald statement in the second review held in May 2013 that an SGO assessment is about to commence in relation to the paternal aunt. This is repeated in the fourth review in January 2014 which records that “an SGO assessment will be undertaken at the appropriate time”. It is noted at the fifth review in July 2014 that the paternal aunt still wished to have the children living with her under SGOs but the assessment is still not there some fourteen months after it was first raised. This is a simply appalling delay and does not seem to be criticised by the IRO – if there is not going to be criticism in such cases then one has to ask when would it ever occur?

ii) The IRO was aware in May 2013 that the mother wanted contact to the children but no decisions were made on this crucial point at the time. In September 2013 it was noted that indirect contact had happened and the next stage would be to consider re-introducing direct contact yet by the fourth review it is simply noted that they were “working towards direct contact”! The first face to face contact did not take place until February 2014, a full 13 months after the children had arrived in the UK with the mother saying that she wanted to see the children throughout and the eldest child, X, having said he would like to see his mother in February 2013. It is entirely possible that the contact would not have been successful (as has in fact occurred) but it must be the duty of the IRO to challenge this astonishing delay in attempting such contact in circumstances when the children had no involvement with any member of their birth family.

  1. The lack of urgency in the case is breath-taking and it is simply wrong to point out the failures of the IROs to force the issues as an “Area for Development”. It was a total failure to “monitor, persuade, cajole, encourage and criticise fellow professionals in the interest of the child” as they should have been doing. This was clearly a case that should have come before the courts years before it actually did yet the IRO did not appear to put any pressure upon the Local Authority to ensure that this occurred. There is power within s.25B(3) Children Act 1989 for an IRO to refer the case to CAFCASS if it is considered it was appropriate to do so. It is difficult to understand why such action should not have been carried out in this case in order to ensure that the welfare needs of these children were fully protected.
  2. It follows that the failures of the IRO were sufficient in this case to amount to a breach of the children’s and the mother’s rights to family life and a fair trial.

 

 

If I were a betting man, and I am, I would expect an increase in care proceedings issued when the September set of CAFCASS stats come out.  And the volume of care proceedings issued is already at an all-time high.

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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]