Human Rights Claims – Public Children’s law

Children – Public Law

02 January 2019

Here are a couple of interesting recent examples of successful Human Rights Act claims against Local Authorities in respect of care cases:

BT & GT (Children: twins – adoption) [2018] EWFC 76

This is a High Court case in which Keehan J granted two applications for adoption in respect of twins who had been placed separately and criticising the ‘utterly appalling’ failings of the local authority, which had led to their separation.

Care and placement orders were made in 2015 in respect of twins born in 2010. The care plan stipulated a nine-month search for a joint adoptive placement and thereafter a three-month search for a joint long-term foster placement. There was no question of separating the twins. Nonetheless, the local authority took the decision to do so a little over a year after the final orders were made. There were no records relating to that decision and a sibling attachment assessment was only undertaken three months after the decision had been made. That assessment ‘completely misrepresented’ the court’s care plan and was written with the plan for separation already determined; further, the judge found that the author of that report had deliberately misrepresented the opinion of an expert psychologist which ran contrary to the local authority’s recommendation. The care plan itself appeared never to have been uploaded to the local authority’s IT system.

In 2017 the twins were matched and placed with their separate prospective adopters. It later emerged that important and highly relevant information had been deleted from the children’s Child Permanence Reports and Adoption Support Plans by the adoption team manager in order to mislead potential adopters as to the children’s challenging behaviours. The local authority had further decided, without recording why or how, to curtail sibling contact such that the twins saw each other just twice in the space of 11 months.

In October 2017 the local authority decided to end one of the placements under s.35(2) ACA 2002 over purported concerns as to the care being provided; this decision was reversed a month later, with the local authority accepting it was ‘entirely misconceived’. For the avoidance of doubt and any future obstacles, Keehan J, sitting as a judge of the Administrative Court, granted permission for and deemed an application for judicial review by the adopters, in which he quashed the decision to issue a s.35 (2) notice on the basis of irrationality.

The applications
Separate applications for adoption were made by the prospective adopters in late 2017 and early 2018. HHJ Plunkett noticed the sibling connection and allocated both to Keehan J. All parties now agreed that the children should be adopted in the current, separate placements. Keehan J had hoped either to reunite the children or to make an order short of adoption, which would not sever their legal relationship as siblings.

The Anna Freud Centre was instructed and recommended that the twins remain separated, in their current placements, but continue to have a relationship; an adoption order was preferred to an SGO, on balance, due to the children’s likely on-going vulnerability beyond their minority. The judge was persuaded, in particular by the evidence of the Centre, to make the orders sought. However, he was clear that but for the failings of the local authority there was a real possibility the children could have been placed together. An order for sibling contact was not made, as the judge was confident that the adopters would facilitate this ‘imperative’ contact.

Breaches of human rights
The children and prospective adopters made further applications, outwith these proceedings, for declarations and damages under the HRA 1998. In light of the history above, the local authority admitted ‘extensive and grave breaches’ which ‘relate to the whole operation of children’s services in Herefordshire’ and which were ‘both systematic and the fault of individual social workers’. Damages were settled in the sum of £5,000 for the prospective adopters and £20,000 for each child.

The four annexes to the judgment set out the admitted HRA breaches alongside other admitted failings and planned improvements prepared by the new management at Children’s Services. Keehan J was reassured by the ‘root and branch’ reform now being undertaken at Herefordshire.

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

This is another High Court case in which Keehan J was highly critical of the Local Authority.

The case concerned two young women A and B. A and B were made the subject of care orders and placement orders on 2nd May 2008 in favour of Herefordshire Council. Neither was ever placed for adoption. A’s care order and placement order ceased to have effect when she attained majority on 1st September 2017. The local authority made an application to revoke the placement order in respect of B on 26th April 2018. The Court revoked the placement order at a hearing before on 11th October 2018. B attained her majority the following day.

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

The Parents of both of the young people had played no substantial part in their children’s lives for many years save for occasional contact, nor did they take any role in the High Court proceedings.

At the hearing on 11th October 2018 the local authority conceded that the serial failures in the care provided, or not provided, to either A or B amounted to breaches of their respective Article 8 rights. Keehan J urged the local authority to reach an agreement with both young people in short order in respect of:

  1. i) the acknowledged breaches of their Article 8 rights; andii) the quantum of damages which should be paid in settlement of their Human Rights Act claims.

The Judge made the final 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 caseloads, 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 they’re too few social workers that 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.

60. For clear and obvious reasons, I conclude these proceedings by affirming the revocation of the placement order in respect of B as I made on 11th October 2018.

61. The local authority have rightly agreed to pay A and B’s costs of these proceedings.

62. My findings in this case merit my judgment being sent to the Secretary of State of Education, the Senior Social Worker, Ofsted and the Chief Executive of Herefordshire Council’.

These 2 cases are therefore good examples of the types of poor care planning (one where siblings were separated and one where the Care Plan for adoption was never implemented, so the children remained in ‘limbo’) which will be considered breaches of the Human Rights Act 1998.

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