Children’s rights legal digest – June 2023

In this issue we revisit the seminal 2012 High Court judgment concerning A and S – two brothers whose human rights were gravely violated while they were in local authority care. The High Court found that because of numerous, protracted failings by the local authority, as well as repeated failure by the boys’ independent reviewing officer (IRO) to act on concerns and hold the local authority to account, A and S suffered “irreparable harm” with lifelong consequences. Still today, the judgment shines a light on the vital importance of listening to children and young people and ensuring rigorous, independent scrutiny over the actions of individuals and organisations responsible for looked after children.

Local authority and IRO acted incompatibly with statutory human rights obligations causing irreparable harm to two looked after children

When A, aged 16 at the time of the court proceedings, was asked what improvements in his view could be made to the care system, he replied: “FOR THE IMPORTANT PEOPLE TO LISTEN TO US.” (Paragraph 10)

Background

The judgment concerns two brothers – A, aged 16 at the time of the proceedings, and S, aged 14. The boys had been taken into care as infants, primarily due to domestic violence within their family. The boys were initially placed with their paternal aunt but after about a year they were moved to live with foster carers as their aunt struggled to support the boys alongside her six children. Around three years after becoming looked after, following an application by the local authority, ‘freeing orders’ were made for both boys, meaning all contact between A and S and their extensive birth family, including their mother, aunt and other siblings, was stopped.

(Freeing orders were introduced by the Adoption Act 1976 and they “extinguished a child’s membership of their birth family and entrusted sole parental responsibility to the local authority as adoption agency”. They were legally available in situations “where there was a real prospect of a permanent family being found within twelve months”. In 2005, they were replaced with placement orders introduced by the Adoption and Children Act 2002. Unlike freeing orders, placement orders do not remove the child’s legal ties to their family).

Between 2001 and 2008, the boys lived in two foster homes – with Mr and Mrs H and Mr and Mrs B, respectively. During this time, while with the Hs, they were subjected to frequent and severe punishments, as well as physical and emotional abuse. (Mr H was subsequently convicted of sexual offences against another child in his care). In 2008, after more than five years with the Bs, they boys were removed from their care after Mrs B assaulted A with a belt.

Even though the local authority had formally stopped looking for an adoptive family in 2004, it did not apply to the family court for the freeing orders to be revoked, meaning there was no physical person with parental responsibility for A and S, and the boys still could not see any of their family members.

In July 2008, at ages 13 and 11, A and S went to live with Mr and Mrs SG. By that point, S’s trauma manifested itself in very challenging behaviour and in late 2010 he moved to a children’s home. A remained with SGs but, in mid-2011, the local authority decided that A would also move to a children’s home. This was despite social work records noting in early 2010 that A was settled and had a good relationship with SGs and their wider family. Fearing he would be taken away from SGs, A approached a solicitor on his own who secured an agreement that he would not be “unilaterally moved” from his carers. The solicitor also invited the local authority to apply to revoke the freeing order for A and when it did not do that, A, who unlike S had been assessed as having capacity to take part in the proceedings, made the application himself. It was only then that the local authority applied for the same for S. This led to A receiving permission and securing an order from the High Court preventing the local authority from removing him from SGs’ care without authorisation from the court.

Between 1999 and 2011, each of the boys was the subject of approximately 35 statutory care reviews (‘looked after children reviews’) and at each review the chair recorded that an application would be made, or had already been made, to revoke the freeing order, despite this being untrue. Between September 2006 and March 2011, a single IRO oversaw A and S’s care and chaired 16 review meetings. During their time in care (prior to the 2012 court proceedings), A had lived in 12 different places, 7 of which lasted less than one year, and he had had been placed in short breaks (respite care) 36 times, with 19 different carers. During S’s time in care, he had lived in 16 different places, 10 of which lasted less than one year, and he had been placed in short breaks 40 times, with at least 22 different carers. During their childhood, A had moved “backwards and forwards between placements of all kinds” 77 times and S 96 times.

The legal framework

The role of the independent reviewing officer (IRO)

The duty to appoint an IRO for each looked after child is set out in section 25A of the Children Act 1989. Section 25B lists the statutory functions of the IRO:
(a) to monitor the performance by the local authority of its functions in relation to the child;
(b) to participate in statutory reviews; 
(c) to ensure that any ascertained wishes and feelings of the child are given due consideration by the local authority;
(d) to perform any other function prescribed by regulations (i.e., The Care Planning, Placement and Case Review (England) Regulations 2010). 

The legal duties of the IRO are further set out in The Care Planning, Placement and Case Review (England) Regulations 2010. Regulation 45 places a range of fundamental duties on the IRO, including:
- Ensuring the child’s wishes and feelings are taken seriously – 45(4)(a);
- Informing the child about their right to bring proceedings under the Children Act 1989 (e.g., to remove a care order) and make complaints – 45(1); 
- Helping the child access legal advice and get help from an advocate – 45(2); and
- Take action if the local authority fails to meet its duties in any significant way, including by considering a referral to the Children and Families Court Advisory and Support Service (Cafcass) – 45(3).
 
Statutory guidance – IRO Handbook – explains that the intention behind the role of the IRO (which was initially created in 2002 and then expanded in 2008) is to “enable the IRO to have an effective
independent oversight of the child’s case and ensure that the child’s interests are protected throughout the care planning process”.
Human rights obligations

The European Convention on Human Rights (ECHR) guarantees a range of rights, freedoms and protections to children and adults alike. The Human Rights Act 1998 gives the ECHR direct effect in UK law, with section 6(1) making it unlawful for a public authority to act in a way which is incompatible with ECHR rights. Section 8(1) of the Human Rights Act 1998 gives UK courts the power to award ‘remedy’ or ‘relief if it finds an act of a public authority (actual or proposed) unlawful. 

- Article 3 ECHR prohibits torture and inhuman or degrading treatment or punishment. The state and those acting on its behalf, such as local authorities, have both negative obligations under Article 3, i.e., refraining from breaching it, and positive obligations, i.e., actively protecting people from Article 3 breaches (for instance by passing laws and putting systems in place to prevent and respond to torture and human or degrading treatment or punishment).  

- Article 6 ECHR guarantees the right to a fair trial in both civil and criminal cases. This includes the legal entitlement to a “fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. 

- Article 8 ECHR protects the right to respect for private and family life, with ‘private life’ encompassing not just privacy in the traditional sense but also physical, psychological and moral integrity. Public authorities must not interfere with Article 8 rights unless such interference is carried out in accordance with the law and is “necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”. 

Analysis of impact of local authority failings on the boys’ human rights and welfare (extracts from the High Court’s judgment)  

  • Article 8 ECHR – right to respect for private and family life

A and S are entitled to enjoy the same Convention right to respect for their private and family life as anyone else. This relates not just to the search for a substitute family, but to the maintenance of such birth family connections as were in their interests. [The local authority] had, as it now acknowledges, a continuing positive obligation to promote these rights (…) The IRO accepts that he was in a particularly significant position to have asserted these rights on behalf of the boys. In fact he was the only independent professional who could have done so. Had the children been under a care order, [the local authority] would have been obliged to permit and promote reasonable contact with their mother and siblings in accordance with their statutory obligations to a child in care under section 34(1) and Schedule 2 paragraph 15(1) of the Children Act 1989. If it did not consider this in their interests, it would have had to justify this to the court by means of an application for permission to refuse contact under section 34(4). What [the local authority] instead did was to circumvent those statutory obligations. Although it operated as if these children were under care orders, it remained positively resistant to family contact.” (Paragraphs 115-118; emphasis added)

  • Article 6 ECHR – right to a fair trial and access to the courts

Breaches of Article 6 rights concerned “inadequate monitoring and reviewing procedures” and the local authority’s failure to revoke the initial order relating to plans for the boys to be adopted, which in effect amounted to “a denial of access to the court process”. This, in turn, had a knock-on impact on other, significant rights and entitlements – the boys’ mother was prevented from being involved in the care review process, the boys were denied “the protection and scrutiny of having a children’s guardian appointed for them, and legal representation appointed to act on their behalf”, and they were denied court scrutiny in relation to refusal to allow contact with family members. (Paragraph 122; emphasis added)

  • Article 3 ECHR – prohibition of torture and inhuman or degrading treatment or punishment

“[The local authority] had a positive obligation to protect A and S from inhuman and degrading treatment. The abuse in the home of the [foster carers] was a violation of these rights.”  (Paragraph 123; emphasis added)

  • Impact on the boys’ welfare

For both boys, their experiences had a profound and lifelong impact on their cognitive, emotional and social development.

  • Impact of multiple short breaks

The High Court also drew attention to both potential benefits and harms of short breaks (known also as ‘respite care’) for looked after children, stressing the importance of considering the impact of short breaks on children alongside the benefits to the foster carers and the placement. The judgment cites A and S’s guardian’s remarks:

… both A and especially S have had a bewildering array of respite care […] There have been far more moves as opposed to placements and although these may be disregarded as “holidays” or “breaks” we need to be clear it was the foster carer who was having the break […] in my opinion,  the accumulative impact of so many moves was to fragment further [the boys’] lack of feeling they belonged to anyone, compounding their insecurity and lack of well being”. (Paragraph 166)

The High Court’s decision   

The High Court summarised what had happened to A and S as follows:

Over the years, the local authority defaulted on its duties towards the children and its independent reviewing system did not call it to account. The matter was never returned to court as it should have been and as a result the local authority’s actions did not come under independent scrutiny.” (Paragraph 2; emphasis added)

“One lesson is that the legal status of children in care has welfare consequences. If the court has authorised a local authority to look for an adoptive home …, all energies will be directed towards achieving that outcome, with the maintenance of family ties a much lower priority…  That is, in the current jargon, the direction of travel. But if adoption is not possible, the direction changes. The child will not be losing membership of [their] birth family and the question of what family connections (if any) are in [their] interests needs to be reviewed. In this case, the destination changed from adoption to long term fostering, but the local authority did not react… The result was that these children, who were very young when they went into care, lost their links with their birth family without gaining a family of their own. [The local authority’s] reviewing system did nothing to correct this. The role of the Independent Reviewing Officer can be compared to that of the Safety Officer, or Quality Control Supervisor within the local authority organisation. In this case, no one carried out these essential tasks.” (Paragraphs 11-13; emphasis added)

The High Court made a declaration under the Human Rights Act 1998 that the local authority and the IRO acted incompatibly with the rights of A and S under Articles 8, 6 and 3 of the ECHR in 10 respects:

The local authority: 
1.	Failed to provide A and S with “a proper opportunity of securing a permanent adoptive placement and a settled and secure home life” (Article 8);
2.	Failed to seek revocation of the orders freeing A and S for adoption which in effect deprived them of protection under the Children Act 1989, of contact with their family and of access to the court and the procedural protection of a children’s guardian (Articles 6 and 8); 
3.	Allowed A and S to be subjected to degrading treatment and physical assault and failed to adequately protect their health and safety (Articles 3 and 8);
4.	Failed to provide accurate information about A and S’s legal status to the IROs (Article 8); 
5.	Failed to ensure that there were sufficient procedures in place to implement the recommendations arising from A and S’s care reviews (Article 8);
6.	Failed to promote the right of A and S to independent legal advice (Article 6); and
7.	Failed to act as the ‘responsible body’ to enable A and S to pursue any potential claims (e.g., criminal injuries compensation and/or breach of human rights) (Article 6);

The IRO: 
8.	Failed to identify that A and S’s human rights had been and were being violated (Articles 6 and 8); 
9.	Failed to take effective action to ensure that the local authority implemented the recommendations arising from A and S’s care review meetings (Article 8); 
10.	Failed to refer the circumstances of A and S to Cafcass (Article 8).

Alongside the 10-point declaration, the High Court ordered for A and S’s claims for damages under the Human Rights Act 1998 to be transferred to the appropriate court to be heard together with their claims for breach of statutory duty and negligence against the local authority.

Information about financial settlement for harms suffered by A and S – not part of the judgment: 

In December 2018, specialist abuse solicitors representing A and S secured financial settlement amounting to £9.6 million. Evidence from various experts was considered when calculating the settlement, including a child and adolescent psychiatrist, adult psychiatrist, care expert, educational psychologist and court of protection expert. The Official Solicitor acted as A and S’s litigation friend. You can read more about that settlement here. 

Following a referral by an IRO, Cafcass has the power to initiate three types of proceedings: proceedings under section 7(1) of the Human Rights Act 1998; a claim for judicial review; and other proceedings (for example under the 1989 Act) – see regulation 3 of The Children and Family Court Advisory and Support Service (Reviewed Case Referral) Regulations 2004.

You can read the full judgment here: A & S (Children) v Lancashire County Council [2012] EWHC 1689 (Fam) (21 June 2012)

To learn more about the statutory functions, duties and powers of the IRO, read our law map on this topic.