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Multiple failings, IRO and whistleblowing

 

It is part of the Christmas tradition of Suesspicious Minds that some Local Authority takes an almighty judicial kicking in a published judgment,  and this year I’m afraid it is Herefordshire behind the door on the advent calendar.  This is a damning judgment by Keehan J

 

 

 

2.The care of and care planning for both these young people by Herefordshire Council has, over the last ten years or so, been woeful.

A & B (care orders and placement orders – failures) [2018] EWFC 72 (30 November 2018)

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2018/72.html

 

Herefordshire County Council obtained Care and Placement Orders on two children, A and B in May 2008. At that time, A was 11 and B was 10 (that sounds immediately to me like a highly optimistic order…)

 

Neither were placed for adoption, and the plan of adoption was abandoned by the Local Authority in September 2009. No applications were made to revoke the placement orders for A, and it discharged on her 18th birthday. An application was finally made to revoke the placement order for B, when she was 17 ½, it being revoked the day before her 18th birthday.

The girls were separated in 2013, and nobody was really able to explain to the Judge why that was

 

This was followed by a LAC Review held on 13th December 2013 at which it was decided to place A and B in separate foster placements. I do not know the reasons why this important decision was made nor the evidence on which it was made. A and B were never again placed together. I have no explanation as to why not.

 

 

 

 

22.On 19th November 2016 A and B had their first face to face contact since 2014. This has been requested by A who was pregnant.

 

 

23.On 12th March 2017 A gave birth to her first child, F. She had no secure or stable accommodation. A whilst pregnant and after F was born had been living in an annexe at her former foster carer’s home. In May 2018 A reported to the local authority that she and F had been evicted by her former foster carer and that she had nowhere to go. The local authority’s response to the plight of this young mother and care leaver was wholly inadequate. The response was so poor that, the Head of Service, Gillian Cox, accepted that the local authority had failed A and her daughter.

 

 

 

 

26.Between December 2013 and 1st September 2017, when she had attained her majority, A had had at least 5 changes of placement in various different areas of the country. There is no doubt that the instability in A’s life during these formative years, including the numerous changes of placement, have caused her significant emotional and psychological harm.

 

 

27.Between February 2016 and 6th March 2018 B endured 7 changes of placement in various different areas of the country. The harm suffered by B as a result of these changes in placement in terms of her emotional and psychological wellbeing are incalculable.

 

 

28.Between November 2008 and May 2018 A has had 6 different social workers allocated to her case. Between June 2014 and August 2018 B has had 8 different social workers allocated to her case. I accept the reallocation of case in October 2016 to a social worker in the 16+ Team was inevitable. There is, however, no good or cogent explanation for the high turnover of the other social workers which, to put it mildly, must have been unsettling and unhelpful.

 

 

29.From the time the children were made the subject of care orders and placement orders in February 2008 until October 2018 this local authority has had eight different independent reviewing officers (IRO) responsible for the oversight of their care plans.

 

 

(In 25 years of practicing family law, in various different local authorities, I don’t think I’ve MET 8 different IROs, but these girls had 8 different ones allocated to them at various points…)

The Head of Service filed a statement setting out the admissions that the LA made as to their failings in this case

 

 

30.I was so concerned at the failures of the local authority in respect of A and B that I ordered Ms Cox, the Head of Service, to file a statement setting out an explanation for the same. Her statement is dated 1st November 2018.

 

 

31.In respect of A, Ms Cox said as follows:

 

 

 

“In my view our service has failed to support [A] as I would expect since she first became homeless and in particular I would identify the following:

 

 

  1. In May when [A] first contacted our team to say that she was homeless we should have offered her supported lodgings accommodation in Herefordshire with [F] on a temporary basis whilst a longer term solution was identified. We should also have pro-actively supported [A] to search for private rented options in Birmingham and made it clear to her that we would financially support her with a bond and act as a guarantor if required.

 

 

  1. As time progressed and [A] continued to ask us for help and was not able to obtain suitable accommodation for herself in Birmingham we should have revisited these options and again offered her short-term solutions in Herefordshire and proactively supported her to find private rented accommodation. On the 15th June [A] specifically requested to return to Herefordshire but I can find no evidence of this being responded to which is unacceptable.

 

 

  1. The situation should have been escalated through Heads of Service to our Assistant Director and Director who have all asked to be kept informed of any young person who is placed in Bed and Breakfast accommodation. In the turnover of team managers and Heads of Service this expectation was not understood.

 

 

  1. On the 18th June [A] was informed that the local authority decision was that we would not pay a bond for her to secure private rented accommodation for her. This was not the case as this was agreed by the Head of Service when she was made aware of the situation. It is concerning that the team lack clarity about the support they are able to offer and did not escalate the situation earlier.

 

 

  1. There was a delay of almost a month in authorising a placement request made in July and this is unacceptable. The delay was due to further information not being provided to the Head of Service but in the circumstances the Head of Service should have been more pro-active in gaining the information she required.

 

 

  1. On the 11th October the personal advisor supported [A] and [F] to move from the Travel lodge to Northbrook hostel but did not look around the shared facilities. She described the accommodation as “basic” but did not raise concerns about the suitability of it for [A] and [F]. Having seen the photographs that [A] sent via her legal representative I was appalled by the state of the accommodation she was living in and was very clear that this was unsuitable and she should not have been left there.

 

  1. [A] is currently living in a supported lodging placement in Herefordshire with her daughter, [F]. She moved there on Tuesday 23rd October as an interim arrangement whilst suitable private rented accommodation for [A] and [F] is sourced in Birmingham. I received photographs and an email that [A] had sent her legal representative on the 23rd October and I was appalled at the state of the accommodation that she was living in. I telephoned [A] directly myself and asked if she would be willing to move to a supported lodging placement in Herefordshire if I could arrange that whilst we sorted out a suitable place for her to live in Birmingham. [A] was concerned about moving away from Birmingham but I was able to reassure her that this would be for just a short time. [A] agreed and so I made arrangements for our fostering team to find a placement for her and [F] and for her personal advisor to go to Birmingham to collect her that day.

 

  1. [A] was supported by her personal advisor to view flats in Birmingham on Thursday, 25th October and found a flat that she liked in an area that she is happy to live in. Herefordshire Council has paid 6 months’ rent up front and all relevant administrative fees to enable [A] to move into the accommodation. [A] will pay the housing benefit that she receives to the local authority as she receives it. At the time of writing this statement the plan is that [A] and [F] will move into their new home on Friday, 2nd November.

 

  1. [A] will continue to receive the support of her personal advisor. She is being referred for “floating support” and the most suitable provider for this is being investigated. The local authority will fund this support if [A] is not entitled to receive the support at no cost.”

32.In respect of B, Ms Cox observed in respect of the current placement that:

 

 

 

“[B] continues to live in a supported lodging placement with her boyfriend and his mother. She has lived there since March 2018. She is reported as happy living there although understands it is unusual to be living in the same home as her boyfriend at such a young age and is keen to move to live independently soon after she turns 18. She has been supported to register for housing and in the meantime can remain where she is. [B] will continue to receive the support of her personal advisor.”

33.I was told by Ms Cox that substantial steps have now been taken by the local authority to ensure:

 

 

 

  1. i) the mistakes and serious errors made in respect of A and B are not suffered nor endured by any other child or young person in the care of Herefordshire; and

 

  1. ii) far more robust procedures are now in place to ensure issues are escalated to more senior managers and, where appropriate, to the assistant director and/or the director of children’s services.

 

 

The Judge was concerned that the IRO system, which should have tackled these failings and drift, and got the LA to apply to revoke the placement orders and tighten up their planning for these girls (including ensuring that they had contact with one another) had not done so. He ordered a report from the Head of the IRO team

 

 

35.Accordingly I ordered the Head of Service, Safeguarding and Review (i.e. the head of the IRO service for this local authority), Cath Thomas, to file a statement. I am grateful to Ms Thomas, as I am to Ms Cox, for providing the court with a statement dated 1st November 2018. I regret to note that the statement contained a number of matters which caused me very profound and grave concern.

 

 

36.The statement of Ms Thomas concluded with the final paragraph:

 

 

 

“It is very clear that the issue of revoking [B]’s placement order continued without resolution for a significantly long period of time, both prior to and since the data error was realised in early 2016. This length of delay is absolutely unacceptable and I apologise unreservedly to [B] and her sister. The IRO service failed to fulfil its statutory responsibilities to [B]. I failed to robustly challenge the views of my assistant director at the time, which I recognise I should have done and as head of service I take full responsibility for these failings and apologise unreservedly to the court.”

 

This is a frank acceptance of a proper degree of responsibility by Ms Thomas. I accept her apology without reservation. Some of her actions or more properly her lack of action may be explained or, at least, put into context by a number of events set out in her statement which I shall now turn to consider.

37.In the autumn of 2008 Children’s services in Herefordshire moved from paper files to electronic records. It was not discovered until January 2016 that the placement orders made in respect of both children had not been recorded on their electronic records. This may explain why subsequent IROs did not raise the issue of revocation of these orders, but it does not explain why the IRO at the time the care plan was changed in early 2009 from one of adoption to long term fostering did not do so.

 

 

38.Ms Thomas asserted that in an unrelated case an IRO had concerns about a child’s case and wished to obtain independent legal advice and/or refer the matter to Cafcass. She said she raised this issue with the then senior lawyer and the then assistant director in January 2017. The response from the assistant director to Ms Thomas was that she was not to seek independent legal advice nor to refer the matter to Cafcass. She was further told that if she did not comply with this ‘advice’, disciplinary procedures would be invoked. Ms Thomas asserted that this assistant director did not recognise the independent nature of the IRO service.

 

 

39.It is not for me to determine the truth of these assertions, not least because I have not heard from the former assistant director. The council’s legal department did, however, immediately upon receipt of Ms Thomas’ statement invoke a whistleblowing investigation which has been reported to the Chief Executive of the local authority and members of the council. I note that the then deputy county solicitor agreed with Ms Thomas’ recollection of events.

 

 

40.Ms Thomas asserted that it was because of the ‘advice’ given by the former assistant director that she did not escalate the case of A and B beyond the Head of Service level, did not seek to obtain independent legal advice and/or refer the matter to Cafcass. As Ms Thomas readily acknowledged this was, to say the least, deeply regrettable.

 

 

41.The former assistant director left this local authority in March 2018.

 

 

Obviously the Judge did not hear from the former assistant director who allegedly told an IRO that escalating a complaint about a child’s case would be treated as a disciplinary matter, so there is not a finding as to whether or not that happened. (He notes, however, that the Deputy County Solicitor agreed with what Ms Thomas was alleging)

 

So we can’t say that this actually definitively happened, but if it DID, then there’s a complete failure to understand the role of the IRO and how vital their independence is. The Judge set out the framework and the importance of independence and the ability for IROs to obtain independent legal advice in detail, concluding this

 

 

 

 

50.I am appalled at the manner in which and the serial occasions on which the social workers and their managers have failed these two young people. The fact that I have chosen in this judgment to focus on the role and actions of the various IRO’s should not be taken in any way to diminish the failures of the social workers and/or their mangers in this case. Rather the failings of the IROs has been so stark and grave that, in my judgment, it was appropriate to focus on the failings of the IROs and the IRO service in this case.

 

 

51.Once a court makes a care order it entrusts, as by statute it must, the future care of the child to the local authority. The essential safeguard the court and the public at large have that a local authority will be a good corporate parent is the function and role of the IRO. Any obstruction of an IRO performing their statutory role or any diminution in an IRO, or their manager, feeling empowered to do so, is a matter of the utmost consequence. For otherwise a looked after child is subject to the vagaries of social work practice and the local authority’s different pressures and priorities. The IRO is, or should be, the child’s protector or advocate. If the IRO is silenced or pressured not to act as the child’s interests demand and require, it is the child who will suffer – just as these children, A and B have suffered.

 

 

 

Conclusions

52.This local authority, as it has accepted, failed both young people in the errors made by its social workers and their managers over a very prolonged period of time.

 

 

53.The IROs failed them on a serious and serial basis.

 

 

54.I entirely accept and acknowledge that in these straitened financial times all local authorities are stretched. Furthermore I recognise that this local authority, like very many around the country, have difficulties recruiting and retaining social workers. As a consequence many social workers have to carry very heavy case loads, may not have sufficient experience to deal with the more complex cases and/or have limited time to work on a particular case.

 

 

55.These difficulties, however, do not begin to explain the wholesale failure of this local authority, in its role as a corporate parent to plan adequately or appropriately for the care of these children. I simply do not know or do not understand why the care plan was changed from adoption to long term fostering in 2009. The explanation given in B’s 2018 Care Plan is plainly false or, at best, inaccurate.

 

 

56.This means that neither A nor B can now be given a clear and cogent explanation of why they suffered such instability when in the care of this local authority. I find this to be profoundly regrettable.

 

 

57.The fact that the local authorities are under financial pressures, and there too few social workers who carry too many cases, increases the importance of the role performed by the IROs. When it is known deadlines may be missed, visits not undertaken, assessments not completed or other actions in furtherance of a child’s care plan not addressed, the IROs must take active steps to ensure a child’s welfare and future care is not disadvantaged by these omissions.

 

 

58.Whatever opposition or obstruction the IRO or Head of Service faced from a local authority, the IROs and their managers must remember that their first and foremost duty is to the children and young people that they serve. If this is ignored or obstructed, it is only the children or young people, who are our future, who will be harmed.

 

 

59.The clear message must go out that IROs serve a vital and essential function to ensure that a child’s or a young person’s interests are met post the making of a care order or other orders. If those functions and roles are not exercised in a clear, robust and untrammelled fashion, the children or young people will suffer.

 

 

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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.

Fast and the Furious – Tunbridge Wells Drift

 

 

Okay, this piece isn’t really about Vin Diesel and The Rock racing cars around the backstreets of Kent. But it is about a case about  Medway (which is sort of near Kent) weren’t fast, and as a result the Judge got furious. And where the central issue was drift.  Section 20 drift, y’all.

(*Tunbridge Wells have done nothing wrong in this story – I just needed a “T” town for the Tokyo Drift reference. )

 

I’ve been writing about section 20 drift for a while, but perhaps given that this is a really strong judgment, it is worth a quick recap.  The Human Rights Act compensation to be paid to the mother by Medway was £20,000 and to the child also £20,000.   (And possibly costs to follow – see bottom of this post for an explanation of that)

 

 

  • Without a court forum it was solely the local authority that empowered itself to make decisions about a child unlawfully held by them, with simply a check in the form of the IRO system on the progress and welfare of a child in local authority care (and which system I consider further below).
  • T drifted in foster care without any clear focus on her contact, her need for therapy or her and her Mother’s rights to family life. I find shocking the inattention to contact, such that Medway Council is not even able to specify clearly what has and has not taken place, but is obliged to admit to serious gaps in contact and flaws in its support for this essential aspect of their family life. There would not only have arisen a duty under s34 Children Act 1989 to promote contact if an ICO were in place, but both T and Mother would have had a voice, legal advice and representation within proceedings to pursue their concerns about her accommodation, care plan, therapeutic needs and contact and Medway Council ‘s care of T would have been subject to the necessary judicial scrutiny applying the relevant careful tests relating to the threshold and welfare criteria set out in the Children Act to ensure interference with their family life was in T’s best interests, necessary and proportionate.

 

 

Section 20 is the power under the Children Act 1989 for children to be in foster care without a Court order – it is categorised as a voluntary foster placement. Typically, the parents are asked to consent, or even they come forward and say that they can’t manage, aren’t coping or the child needs a break.  Section 20 can be a really useful tool – if there’s genuine cooperation between the parents and the social worker, nobody wants to force the case into Court and up the stakes.

Where it starts to get problematic, as we’ve seen from a number of cases over the last three years, is where the consent and cooperation isn’t that genuine but that parents either don’t understand or have explained to them what section 20 really is and that they can say no, or are pressured/cajoled/threatened into agreeing, or in the latest spate of cases where a Local Authority is relying on a parent simply not objecting to the foster placement.  There are reasons why a parent might not come forward and object – most obviously that without access to a lawyer or it being explained they don’t even know that they can, or they are afraid of rocking the boat, or they are having faith that the system will work and do the right thing, or that they are intimidated that if they object then the case will be rushed off to Court and that this will be bad for them.

So ultimately, section 20 drift cases are about an imbalance of power – the State is taking advantage of the fact that parents without access to a lawyer won’t object or will agree to section 20.  And so it becomes an alternative to going into Court proceedings. Court proceedings are expensive, and involve a lot of work (going to Court, writing statements and chronologies etc) and of course in Court social workers don’t necessarily get things their own way and the Court can disagree with them.  So there can be a temptation, if the parents aren’t demanding the child back, to just keep going with the section 20 foster placement. And this of course is the drift element – these children can wait months or even longer, sat in limbo – nobody has decided whether the child can ever go home or whether the child’s future lays elsewhere, the case just drifts.  By the time the case finally gets to Court, that relationship between child and parent can be hard to put back together, and the problems the parent has may take time to address and it can be harder for them to get the child back.

Section 20 drift, in short, is bad.

It may be happening more as a result of a series of pressures – firstly a general demand within Local Authorities to save money and cut costs (due to significant cuts to their budgets) and secondly the reforms to Care proceedings that mean that more and more is expected to be done before going to Court – there can be a temptation to keep the case out of Court until all of the assessments are done and everything is just perfect. It is a bit of an unintended consequence – which we’re seeing a lot of since the PLO (Public Law Outline) reforms came into being.  This isn’t a problem limited to Medway here, or Brent as in the last reported case, or Gloucester/Bristol where their Judge has really seized the issue.  I’ve worked in a lot of Local Authorities, I’ve worked against a lot of Local Authorities and I’ve seen it all around the country.

 

That’s the background.

On with this case

Medway Council v M &T 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B164.html

 

This case was decided by Her Honour Judge Lazarus  (readers may recall her from the case where a mother tape recorded a foster carer being dreadfully abusive to her https://suesspiciousminds.com/2015/06/03/tape-recording-paying-off/   )

 

When the child T, was five, she came to the attention of Medway Council, and her mother M, was having mental health problems and was detained under the Mental Health Act. Medway placed the child in foster care, but didn’t actually have mum’s consent (she probably would not have had capacity to give it in any event)

 

 

 

  • T was born on 9.1.08, making her 7 years 9 months old now, and just 5 when she first came to the notice of Medway Council. This was due to a referral made on 8.2.13 by T’s school that T was being collected by a number of adults and concerns that Mother may be a victim of trafficking. Coincidentally, within a few days T was placed in emergency foster care, as her Mother was detained in hospital under the Mental Health Act on 11.2.13.
  • It is clear that Mother was too unwell to discuss T’s accommodation and there are no records whatsoever of any discussion with Mother of T’s whereabouts and care until her discharge in August 2013. It is likely, and there is no evidence to the contrary, that there was no proper explanation to her within this six month period, and Medway Council do not suggest there was, albeit I accept that for some of this time she would have been suffering from severe and disabling mental ill-health. There is certainly no document suggesting that there was any agreement by Mother to this accommodation. What Medway Council claims is that this was a different kind of lawful accommodation under s20, until she was well enough to consider T’s accommodation by Medway Council. It was not, and I shall deal with this further below.

 

 

That argument you may recall from the case I wrote about last week, decided by Her Honour Judge Rowe QC  – in which she decided that the power under section 20 needed to be exercised with capacitious consent, and not merely relying on the absence of objection.

 

https://suesspiciousminds.com/2015/10/12/unlawful-removal-of-a-child-compensation-paid/

 

[That’s the one where I used the comparison of a 10 year old assuming that it was okay to eat all of the Penguin biscuits whilst his mum is upstairs because “mum didn’t tell me that I COULDN’T]

 

In this case, T remained in foster care ostensibly under section 20 until care proceedings were issued – the period involved was 2 years and 3 months. She was in ‘voluntary’ foster care rom February 2013 until proceedings were finally issued in May 2015.  The mother had not even known that this had happened until August 2013, some SIX MONTHS after the child was taken into foster care.  Mother and baby are currently together in a specialist foster placement, and I wish them both well.  As the Judge points out, this is the longest reported case of section 20 drift.

 

The Judge went through everything very carefully (it is an extremely well-drawn judgment and would be recommended reading for anyone dealing with such a case – particularly the analysis of damages)

 

The conclusions were :-

CONCLUSION

 

  • For all of the above reasons I find that Medway Council ‘s accommodation of T and her removal from her Mother was unlawful, and as a result I have no need to go on to consider whether it was ‘necessary’ within the meaning of Article 8(2) ECHR.
  • I also find that Medway Council failed to issue proceedings in a proper and timely manner. This was despite warnings from June 2013 onwards. I have not found it possible to understand why there arose the original misunderstanding of the correct legal approach, why the advice given was not followed, why further legal planning meetings were not held until 2015, nor even why proceedings were not issued immediately in 2015 once the matter was looked at again by Ms Cross in January. The period involved is 2 years and 3 months, the longest currently reported in any case reported on this issue to date.

 

REMEDIES – JUST SATISFACTION

A. DECLARATIONS

 

  • T and Mother are entitled to the following declarations:

 

a. The local authority breached their rights under Article 8 ECHR in that they

i. Unlawfully removed T from Mother’s care on 11.2.13;

ii. Failed to obtain properly informed capacitous consent for T to be accommodated, or to consider/assess adequately the question of the Mother’s capacity to consent, at that date or subsequently;

iii. Accommodated T without Mother’s consent between 11.2.13 and 7.5.15;

iv. Failed to inform Mother adequately or involve her sufficiently in the decision-making process in relation to T;

v. Failed to address the issues relating to their relationship and contact between them adequately;

vi. Permitted unacceptable delay in addressing all of the above.

b. The local authority breached the rights of T and Mother under Article 6 ECHR in that they failed to issue proceedings in a timely manner.

 

What were Medway going to do to avoid this in the future?

 

 

  • Ms Cross has set out in her statement a number of vitally necessary improvements to Medway Council’s procedures and performance which I heartily welcome, particularly as this is not the only case where the use of s20 by Medway Council has been of concern (I am aware of at least three such others, including a reported judgment of mine earlier this year). The proof, as they say, will be in the pudding and depends on consistent and rigorous application of these reforms. They are as follows:

 

a. “During the period of January to July 2015 we have reviewed a number of cases where the child/ren are accommodated under S20 and where the child/ren are aged 12 and under. Where required we have issued or are issuing proceedings;. We have begun this process for children aged 12 and over and this will complete by 1st October 2015.

b. These reviews will continue and with immediate effect we have agreed that our Legal Gateway Panel, chaired by the Head of Service for Advice and Duty, Child Protection and Children in Need, will continue to monitor and track children already accommodated under S20 and will in future review all new cases involving s20;

c. The reduction in the use of S20 accommodation is built into all our service and improvement plans

d. We have reviewed how court work is undertaken within the LAC & Proceedings service and going forward will be targeting this work at the social workers who have the most suitable skills for court work;

e. Training has been provided in recent weeks for social workers on legal processes and proceedings, including the issue of s20, and this will continue on a rolling basis throughout the year.

f. We will be holding workshops on the use of S20 in September and October to provide clear guidance and support for Social Workers to ensure they are equipped to deal with any s20 issues arising and that they fully understand how S20 should be utilised and monitored. We will be providing new policies and procedures for staff across CSC in the use of s20. We plan to have these finalised by September 18th and we would be happy to share these with the Court and partner agencies including Cafcass at our quarterly meetings with the Judiciary and other agencies.

g. At monthly meetings between the 2 Heads of service from CSC and the Head of Legal S20 will be a standing agenda item and we will discuss each child who has been accommodated under s20 in the intervening month to satisfy ourselves that the appropriate management oversight and case related activity is in place.

h. I am in discussion with the Head of Adult Mental Health services to organise workshops for staff on capacity issues and deprivation of liberty (DOL’s) awareness. I hope that these workshops can be completed by 01.11.2015.

i. We have an adult mental health duty social worker located within our advice and duty services to advise and assist on those cases referred to us where the parent/s have a mental health or learning disability.

j. We are organising PAMs training for a number of staff so that we have more staff located within CSC who are able to assess parents with a learning disability in order that we can improve the service provided to them. We hope that this will have taken place by 01.12.2015.

k. We have increased management capacity and have formalised an Operational Manager post in each of the service areas. They will have direct responsibility for ensuring that court work proceeds in a timely manner and that work is of a high standard

l. S20 cases will also be reviewed at a monthly Permanence Panel wherein the permanence planning for LAC children is reviewed. This panel, chaired by my HoS colleague has attendees from Legal services, the Principle IRO and the adoption service.

m. As a result of this review I am also working with my colleagues to review the S20 form that parents sign and we are introducing a checklist for staff when seeking S20 accommodation to ensure that they address all the salient issues with parents. These issues will include considering the parent/s needs arising from a mental health/learning disability. These reviews will have completed by 31.08.2015 and the updated forms will be in use thereafter.

n. Finally the reviewing service have implemented a new review whereby the allocated IRO will review all cases between the LAC review (ie every 6 weeks) to ensure that all planning is on track. Where required concerns will be escalated to the appropriate Operational Manager and if there is still no resolution to the relevant Head of Service.”

 

 

Now, an important check and balance on social worker’s actions or inactions is supposed to be the Independent Reviewing Officer system. The IROs are supposed to hold social workers to account and make sure that things like this don’t happen.  There are regular reviews of children’s cases when they are in foster care. What ought to have happened at those reviews was that the IRO should have got the social workers to commit to either a plan of short assessment and then review the outcome, or make a decision to return the child to mother’s care, or make a decision that the child couldn’t go home and make the Court application to have the child’s long term future resolved. That didn’t happen.

 

LOOKED AFTER CHILDREN REVIEWS & INDEPENDENT REVIEWING OFFICERS

 

  • Ms Dunkin’s statement is helpful in its analysis of the history and the role of the Independent Reviewing Officers (IROs). They are supposed to perform a crucial role monitoring the care of Looked After children by reviewing and improving care planning and challenging drift and delay.
  • It is highly concerning that there have been five IROs in the last two years before proceedings were issued.
  • There was no IRO allocated until 18.3.13, five weeks after T was accommodated, so she was therefore not afforded a review of her care within 20 days of her accommodation as is required under the IRO Handbook and Placement Regulations. By the end of May that IRO is recorded as being on long term sick leave, and this is considered to be the reason why there is no minute of the first LAC review available.
  • Every LAC review minute inaccurately records/repeats the date of T’s accommodation as having taken place a month later than it occurred.
  • I commend the second IRO LC for correctly requiring a legal review of Medway Council’s position not to take proceedings (11.6.13), however despite it not having taken place by the next LAC review that LC conducted there then began the series of failures by LC and each subsequent IRO to challenge the Social Worker and team manager and director of services about failing to follow the clear recommendation initially made in June 2013.
  • No subsequent LAC reviews (18.9.13, 17.4.14, 8.7.14, 25.11.14) made any further clear recommendations as to parental responsibility, legal status or the use of s20 although the issues are mentioned, save to repeat (presumably by cut and paste as opposed to direct engagement with the issue) the same paragraph that set out the original recommendation of 11.6.13. By 8.7.14 what is added is a recommendation to seek legal advice with a view to securing T’s permanency. I am concerned that this betrays that the review process and LC failed to recognise both the full range of T’s needs and her and her Mother’s rights to family life, and had moved on simply to consider how to regularise what had by then become the status quo, T having been in foster care for almost 18 months at that date. This is particularly worrying as that LAC review meeting also demonstrated Mother’s vulnerability: she was accompanied by an extremely domineering ‘friend’ who described herself as an ‘auntie’ (and whom the Poppy Project is concerned may have had some involvement in Mother’s exploitation), and which led to a decision that all future meetings must be conducted with Mother alone.
  • Contact is touched on in the LAC reviews, but no clear picture or recommendation emerges. For example, the review of 17.4.14 mentions the reintroduction of contact I have already referred to, but little further is pursued. At the same meeting the problem with T’s passport and therefore the implementation of respite care during her foster carer’s holiday was raised and not addressed adequately, let alone robustly.
  • Overall, it is clear that although the fundamental fault lay with Medway Council by its social work and legal teams, the IRO process failed T, and by extension her M, by frequent changes of IRO and each one failing to rigorously apply themselves to the outstanding issues with attention or subsequently following up Medway Council’s failings, and if necessary escalating the issue. Ms Dunkin rightly concedes that previous IROs were not robust enough in this respect.
  • The statutory provisions, regulations and the guidance in the IRO Handbook covering the function and performance of IROs has been carefully reviewed elsewhere (see for example A & S (Children) v Lancashire County Council [2012] EWHC 1689 (Fam) at paragraphs 168-217 in particular). I do not propose to make specific declarations in relation to this aspect of the case. No such declarations are sought, and the appointment and management of IROs falls to the relevant local authority in any event. Additionally, I take into account that the correct recommendation was made in June 2013 and subsequently repeated, albeit it was not followed up adequately or at all, and was ignored by the local authority from the outset.
  • Ms Dunkin confirms that since October 2014 there has been a ‘root and branch review’ of the IRO service: immediate allocation of an IRO, with 90% of reviews now on time; improved IRO requirements and monitoring; performance and training audits with areas of improvement requiring action within a set timescale; direct input by IROs onto the electronic system at Medway Council so alerting team managers to implement their own quality and performance processes; shortened timescales for escalating challenges with a 20 day period before it is referred to the Director of Children’s Services; and mid-way reviews between LAC reviews enabling the IRO to check on progression of care plans and recommendations. Ms Dunkin as Principal Reviewing Officer now sits on the Legal Gateway Panel, resource panel and permanency panel.
  • Again these are welcome and necessary improvements, but their effectiveness will depend upon rigorous application of those improved practices.

 

 

 

On the issue of costs, we have a peculiar situation at present, where if a parent follows the law which is to make the Human Rights Act compensation claim within care proceedings, the Legal Aid Agency (the Government department who pay for the ‘free’ legal representation of a parent within care proceedings) will take all of the compensation to cover the legal costs, and the parent or child would only get anything left over.  That pretty much sucks.  Is there anyone who thinks that it is the Legal Aid Agency who should be compensated for what was done to mother and this child? Of course not.

 

So, apparently there are moves afoot to reverse this fairly recent and frankly moronic policy, and the Judge reserved the issues of costs until then.  If the policy doesn’t change, I’d expect an order that Medway also pay mother and T’s court costs, so that the compensation award goes to the mother and T rather than to a Government agency.

 

While I have assessed this award, I am asked for the time being not to order its payment nor to consider costs. This is at the request of the Official Solicitor who is currently investigating the most appropriate way to manage such an award for a protected party within care proceedings given that this is an award properly made within care proceedings (cf. Re L (Care Proceedings: Human Rights Claims) [2003] EWHC 665 (Fam)) and Mother is rightly in receipt of non-means and non-merits tested Legal Aid, but where concerns exist that the Legal Aid Agency may intend to take steps purporting to claim the whole costs of Mother’s representation in these care proceedings from that award. I shall therefore deal with the issue of ordering payment and costs at a later date.

 

 

The Judge here also considered the issue that I raised in the Her Honour Judge Rowe case, as to whether a very short piece of section 20 accommodation if the parent is unable to care for the child and one is establishing whether that’s a really short period  (i.e mum goes into hospital overnight, but the next day is released with medication and is fine) might be warranted – because the alternative is for the mother to be sectioned and on the same day social workers go to Court to get an Emergency Protection Order which would be awful if she happened to be released the next day.

 

It could be argued that where there is such an emergency as this, and indeed as in the Brent case, that it may be reasonable to wait for a short period without taking proceedings in order to review the parent’s progress in hospital in the event that their ability to care for their child might return. This would then avoid the stress and expense of time and resources in bringing unnecessary proceedings that would then have to be withdrawn. I concur with HHJ Rowe’s analysis that a month in the Brent case was too long. It may be reasonable, in rare and very clear cases where such enquiries could be reasonably considered as likely to bear fruit, to wait for at most a day or two while the local authority explored the possibility of an imminent return to a parent’s care. I bear in mind here that both in logic and principle such a period should be less than the time limit of 72 hours which is stipulated in the Children Act as applicable to PPOs. However, otherwise, save perhaps for the first few hours while the child’s status is considered, and advice sought and steps taken to issue proceedings, it must be right that proceedings are brought as immediately as possible for all the reasons discussed above.

 

I think that’s really sensible and pragmatic.  Like the Brent case, this is not legally binding precedent on anyone other than the parties who were in the case, but it would certainly be persuasive in such cases and equally a Local Authority who go beyond that 72 hour period are badly exposed to a Human Rights claim of this type.

Discharge of care order (IRO takes a kicking)

 

One of my commentators asked me this week whether there were many authorities on discharge of Care Orders. I can’t claim any credit for the fact that a case has now turned up.

This is a case decided by a Circuit Judge, so it is not binding authority, but it throws up some interesting issues.  Particularly for, and about, Independent Reviewing Officers.  The judgment is critical of the Local Authority (but more about the systems than the individual worker concerned, though she is named)

 

Re X (Discharge of Care Order) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B217.html

 

This was the mother’s application to discharge the care order on her son X, who is now 14. That order was made in 2001. Very peculiarly, X was at home with his mother under a Care Order until 2010 (and the removal appeared to have happened following mother’s application to discharge the Care Order then).  X then came into foster care and has been there since then.

 

The mother had care proceedings on two younger siblings of X, concluding with no order in 2012. So those children live with her, there are no statutory orders and they are not open cases to social workers.

In the period since the court made its orders of June and December 2012, D’s two youngest daughters have remained in her care. There has been no statutory involvement from Social Services; it is therefore reasonable for the court to assume that the Local Authority has no concerns about the care provided to them. D, very sadly, has been involved on the periphery of proceedings relating to a number of her grandchildren, at least two of whom have been permanently removed. Her losses have continued, therefore, to be many and great.

 

X has autism, so has significant needs of his own.

 

I’ll do the law Geek bit first.

 

Geek point 1 – scrutiny of care plan

When the Children and Families Act 2014 was a twinkle in the drafter’s eye, there was much talk about changing the Court’s relationship with care plans, reducing the scrutiny of them down to the essential matters – no doubt with the hope that the time spent in Court proceedings micro-managing every aspect of the care plan and litigating about every tiny aspect could be cut out and that would speed things up. The Act duly did include a clause to the effect that the Court was only REQUIRED to look at

section 31 (3B) Children Act 1989

…such of the plans provisions setting out the long-term plan for the upbringing of the child concerned as provide for any of the following

(a)the child to live with any parent of the child’s or with any other member of, or any friend of, the child’s family;

(b)adoption;

(c)long-term care not within paragraph (a) or (b).

 

i.e just a flat-out ‘where is the child going to live under this plan’.

 

I haven’t seen that really happen, and also I haven’t seen it appear in any law reports. Until this one

 

Section 31(3)(A) further makes clear that the court must limit its consideration of the prescribed elements of the care plan as to placement, and as the commentary in the Red Book suggests that must necessarily be limited to the form of placement, not the detail of it. I am, however, nonetheless satisfied that, in this case, the court can and must look at the implementation of the plan and its effect on the child in order to complete the welfare evaluation.

 

Which is a really elegant way of saying “The Act says that I’m not REQUIRED to look at the detail of the plan, but to decide the case fairly, I still need to”

 

Geek point 2 – Court keeping hold of the case to hold the LA to account

 

The Guardian in this case told the Court that she did not support the mother’s application to discharge the Care Order, but wanted the Court to adjourn the application, because the LA had made such a mess of things there was little confidence that if left to their own devices without Court scrutiny they would fix things.

It is submitted on the guardian’s behalf that the Local Authority has so failed in its duty as corporate parent to implement the final care plan approved by the court that it should be held to account and its future planning overseen by the court. The guardian urges the court to require the Local Authority to produce an updated plan that is coherent, choate and capable of implementation. The guardian supports the discharge of the Section 34(4) contact order. She does not support the making of a defined contact order in substitution, but invites the court to direct the Local Authority to confirm its commitment to contact at the level of six times a year in its revised plan

 

The Local Authority argued that the Court had no jurisdiction to do that. And if they didn’t use the words ‘smacks of starred care plan’ in their argument, I’d be highly surprised.

The Court accepted that there was no jurisdiction to adjourn the proceedings just to monitor the LA. But did decide that there were some material bits of evidence that were needed before mother’s application could be properly determined.  (so a half-way house). The Judge also ordered, that that evidence should be obtained through an independent social work assessment.

 

Geek point 3 – the legal approach to a discharge of care order

 

The Judge points out that the burden is on the applicant (i.e mother) to show that the order should be discharged

It is for Mother to satisfy the court that there has been a material change of circumstances and X’s welfare requires discharge of the care order.

But then goes on to say that in considering article 8, the Court would have to consider whether it was necessary for the Care Order to remain and to only continue the order if it was proportionate.

 

The court is mindful that Article 6 and Article 8 of the Convention Rights are engaged and that when the court considers the application to discharge the care order, it can only continue the care order if satisfied that the Local Authority’s continued intervention is proportionate

 

Those two things involve some degree of conflict – it seems that the burden is on mother to show that the Care Order should be discharged and simultaneously on the LA to show that it is proportionate for it to continue.

I’ve never seen that argument advanced. It seems in keeping with the spirit of Re B-S (where even if the Court has approved the plan of adoption by making a Placement Order, when the Court is considering making an adoption order, it still has consider whether the plan already approved is necessary and proportionate). But it jibes with a fundamental principle of English law that the burden falls upon the applicant.

I don’t want to say that the Judge is wrong here, and I’m not even sure that she is. I think it is a natural consequence of the need to apply article 8 to any decision made by the Court in family proceedings that the Court need to be satisfied that the interference (even continued interference) by the State in private and family life is proportionate.  I think that she has spotted something clever that I had overlooked.  It made my temples throb a bit to think about it.  I wonder if we will see this revisited.

 

Judicial criticism – LAC reviews

There were major issues in this case. One was that despite the child having been in care since 2010/2011 with a plan of long-term fostering, he was still waiting for a placement. Another was that the therapy and work that he obviously needed still hadn’t materialised.  (And if you are thinking “I bet they made a referral to CAMHS and that was the end of it”, then you are both a hard-bitten cynic and right. )

There was also the issue of contact, particularly contact with his siblings.  And the issue that the LA had basically stopped working with the mother altogether.

She is described as being ‘challenging and forthright’  (which is a bit like those obituaries you see of famous people that say ‘fun loving and gregarious’ when they mean ‘an alcoholic who was exhausting to be around’ or ‘was not one to suffer fools gladly’ to mean ‘was obnoxious and vile to everyone who worked with him’. )

 

 

But let’s quickly look at how little involvement the LA were having with this mother (who lets not forget was SHARING PR for this 14 year old)

It is unusual to come across a case where a mother who continues to share parental responsibility is excluded from the LAC reviews, is not provided with the name of the social worker working directly with the child, is not provided with information about the child’s school, receives no updates of his medical condition and no updates of his work with the therapeutic services. As far as I understand it, she was not even provided with redacted copies of the school reports.

 

Yes, you read that correctly. The LA weren’t even telling the mother the name of the social worker.

The bigger issue, however, with all of these things was, where was the Independent Reviewing Officer in all of this?

I mentioned ‘starred care plans’ earlier – if you are not one of my more breathtakingly beautiful and vivacious readers [translation :- older]  you may not know about starred care plans.  They were a short-lived invention of the Court of Appeal, to deal with the concern that where the Court approves a care plan and makes a Care Order, the LA then go off and run their Care Order and there’s no mechanism to get the case back before the Court to say “hey, they aren’t doing what they promised”.  The House of Lords squashed that mechanism but did say that there ought to be some form of mechanism created by Parliament to address the issue. As a result, Independent Reviewing Officers were created by Parliament – to scrutinise performance of a care plan and also giving them the ability to refer any breach to CAFCASS who could in turn apply to Court.   (Last time I checked, nationally there had been 8 referrrals and 0 court applications, so that’s working well)

 

29. The LAC reviews, whilst being required to consider the plan for permanence, appear to play lip service to the need to achieve this. There is no record of reasoned debate and discussion about the child’s need for permanence or how the plan for permanence might be reviewed and achieved. It is fortuitous that X has been able to remain where he is to date. It may be that he will remain there until he achieves independence. Nonetheless it is regrettable that the Local Authority failed to rigorously pursue suitable alternative long term placements for X or demonstrate a determination and clarity of thought in the allocation of their resources. The LAC review minutes do not demonstrate clear and strategic planning in the search for a family even during the period when the Local Authority knew of the equivocation of the current carers.

  1. It is generally acknowledged that the earlier a child achieves permanence the better. It is all the more important for a child like X, whose needs are necessarily heightened by his family history and his autism. I am advised by the IRO that there are significant resource issues for family finding, and finding long-term foster homes for boys is more difficult than for girls. I note the evidence of the independent reviewing officer, Mr Moore, who indicated that 75% of the children he was responsible for with a plan for long-term fostering were still waiting for a permanent placement more than two years after final order.

 

 

 

and later

  1. At this point, it seems to me appropriate to consider the role of the independent reviewing officer in X’s case. Mr Moore has been the independent reviewing officer for X since July 2012. Graham Moore provided a statement and gave evidence to this court. He is an experienced IRO, having been engaged in that role for the last five years. Before that worked as a Cafcass guardian. The IRO accepted that his role meant that he had responsibility for

    i) providing independent oversight of the Local Authority’s care planii) ensuring that the child’s interests were protected through the care planning process;

    iii) establishing the child’s wishes and feelings.

    The IRO accepted the statutory requirements of the LAC review process and that as IRO he was responsible for setting a remedial timescales where necessary.

  2. Whilst parents do not always attend LAC reviews, a system is generally devised to enable meaningful sharing of information following LAC reviews. Mr Moore told me that he had endeavoured to meet D in order to achieve this, but they had not been able to meet. Regrettably, no other practical system was implemented to enable the sharing of the outcome of the LAC reviews.
  3. The IRO accepted that the statutory guidance is clear; that where a matter is outside the control of a Local Authority, but is impacting on the ability of that Authority to meet the child’s needs the IRO should escalate the issue to ensure the child’s welfare needs are met. In this case the Access to Resources Team (family finding) failed to find a permanent placement for X in circumstances where his carers were clearly equivocal about whether they could offer him permanence. Yet the IRO did not escalate the issue. The IRO’s monitoring of the Local Authority search for a permanent placement principally rested on information provided by the social worker. The Access to resources team did not provide regular updates on the outcome of its searches.
  4. The IRO confirmed in evidence that he could not recall another case where a parent had been totally excluded from the LAC process for two and a half years. He accepted that Mother should have been receiving information from the school and had not received it.
  5. Criticism is made of the IRO for failing to robustly manage the Local Authority’s implementation of the care plan or pursue the requirement for permanence. I have no doubt that Mr Moore is an extremely hardworking and dedicated member of the Independent Review Team and I am saddened to reach the conclusion that, in this case, he failed to bring independent, robust and effective overview of the Local Authority management of the X’s plan.
  6. The independent reviewing officer is intended to be a robust mechanism designed to hold a Local Authority to account in the management of a child’s plan. In this case, the opportunities to impose remedial timescales and to escalate inaction and delay were not taken.

 

 

The ISW

As the LA had not been engaging with mother since X came into care, the Judge had no real evidence about a key facet of the case.  The Judge could see that mother was managing her two children at home with no concerns, she could see that X was still a challenging child with many difficulties, but there was nothing to show whether mother would be able to work with professionals in such a way that X could be cared for at home.

 

Most unusually in this case, however, I have no information at all as to Mother’s engagement with the Authority in consequence of the way in which the Local Authority have managed the plan, and no means of determining Mother’s insight and understanding of X’s changing needs.

 

  1. The court is mindful that Article 6 and Article 8 of the Convention Rights are engaged and that when the court considers the application to discharge the care order, it can only continue the care order if satisfied that the Local Authority’s continued intervention is proportionate. I am concerned that in the context of this application there is a lack of relevant information as to the nature, significance and degree of change made by Mother, and that it will be difficult to conduct the courts assessment fairly and appropriately unless that gap is filled.
  2. In my view, it will be necessary for the court, therefore, to receive some further evidence as to Mother’s ability to engage and work constructively with and to understand and demonstrate insight of the needs of X. Furthermore, the court requires an update from the Local Authority as to:

    i) the implementation of their care plan as to placement, therapy and contact and

    ii) the detail of the services the Local Authority would provide or could provide to support X if he were to return to the mother’s care.

    It is noteworthy that the court directed the Local Authority to provide details of the support services it would put in place if X were to return home by its directions of 4 November 2014. To date the Local Authority has failed to provide the details of those services.

    It seems to me that, absent this evidence, the court will be unable to complete the welfare evaluation. Counsel will need to address me as to the form of the additional evidence. I would be minded to direct the instruction of an independent social worker to complete a piece of work with D within four to six weeks. I am conscious that delay is inimical to X’s welfare and that this court needs to make a determination of the application for discharge as soon as is practicable.

  3. I consider that such an assessment will be necessary to enable the court to complete the welfare evaluation. I am conscious that no Part 25 application was issued, but it is clear to me, having heard the evidence of the mother, of the Local Authority, of the IRO, and of the guardian, that a gap remains.

 

Last minute evidence

 

Just as the parties were about to go into Court on this one, bearing in mind that a major issue was whether X could be found a permanent foster home (and his current carers having been saying that they wanted to foster three children, but if they offered a permanent home for X they could only look after him alone, because of his needs), news came that X’s current carers were willing to offer him a permanent home.

  1. In evidence on Monday, Ms Allen said she had just received confirmation from the team charged with family finding for X, that the carers had now made a firm decision to offer a permanent home to X. I was further told that the Local Authority have made a firm commitment to put resources in place to enable X to remain with his carers permanently as the sole child in their care.
  2. This change in the Local Authority’s case caused some consternation in the mother’s legal team. There had been insufficient time to share this change with the mother or with the children’s guardian before coming into court. I quite appreciate how difficult it is to share updating information in the scramble to get it into court, particularly where you have a judge who requires everyone to be in promptly, but it is most unfortunate that the team charged with family finding left matters so late as to create this difficulty. The mother and the children’s guardian are now perhaps understandably cynical about this new information. For the mother, it appears too little too late, and for the children’s guardian it raises questions about the carer’s motivation.
  3. Ms Little for the Local Authority reassures the court and the parties that the issue is not one of finance for the carers but rather their genuine desire to offer a home for three children rather than limiting themselves to one. The question of their motivation and the basis on which they are now able to offer themselves as permanent carer will no doubt be under review in the days following this hearing.
  4. It is nonetheless clear that, since at least December 2012, the Local Authority have been aware that the current carers were at best equivocal about X remaining with them on a long-term basis. What is not clear is what efforts the Local Authority’s Access to Resources Team made to find a permanent placement for X I am told that two referrals were made to the team, the first being the principal referral and the second an updating referral. Moreover I am told that Ms Allen spoke to the team from time to time and was satisfied that they were alive to his need for placement and knew of X’s placement needs. The searches appear to have been limited to two geographical areas in line with the wishes of X and the location of his current placement and school
  5. I am advised that no financial restraints were imposed on family finding. I am further told that it is, and was, reasonable for the Social Work Team to rely on the Access to Resources Team to progress the search for a long term placement on the basis of the two referrals and that no further prompting or enquiry from the Social Work Team was required.

 

 

There are two other Circuit Judge judmgnets published today in which the LA sought Care Orders with a plan of adoption and the Court instead made orders that the children were returned to the birth families. Not of any great legal significance because they turn on their facts, but I know that many of my readers may be interested in such cases and they may also be a useful mental exercise of whether these cases would have had these outcomes in 2011.

 

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B218.html

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B78.html